I started reciting a string of Supreme Court cases from memory. They could decide that the first confession was out of line, being a direct affront to the Constitution, so that the poisonous tree doctrine applied, despite the Miranda warning given later. That is what the Court had said in a different context, where the underlying violation was a Fourth Amendment illegal search and seizure.
“Well, if I’d known the stupid stuff I said at the house couldn’t be used, I sure would have kept my mouth shut the second time.”
“Exactly. This argument is good, John. I can’t guarantee the Court will do anything about it, but the argument is good. It’s our only shot, and it keeps your case alive, which is a good thing for its own sake, on the off chance that some other lightning strikes.” I was thinking of how, if my own case hadn’t been considered final when the sentencing guidelines were changed, I might be packing for home.
“Guess what the name of the leading Sixth Amendment case is?” I asked John.
“I have no idea.”
“Massiah versus United States.”
Robby suggested that John go say his prayers.
In fact, the odds against the Supreme Court taking our case were even higher than I then assumed. The Court usually grants only about 1 percent of cases that are filed, and far, far less than that for cases that are filed pro se, without the help of a lawyer.
Later I learned that what we were claiming was a simple case of error correction. Normally, the Supreme Court only grants cases on legal issues that have divided lower courts. Rarely, outside the death penalty context, do they grant a case to correct a bad lower court ruling. If they did that too often, they would never have time for cases with sweeping impact. But I was too green to know that.
We did a few sets of push-ups. Before we left the yard, John patted me on the back. “Hey, buddy, at least we’ll go down fighting,” he said.
“It’s a good argument,” I said. “You can win, John. Think positive.”
“Say your damned prayers,” Robby added.
I decided to write Annie. I told her about my breakthrough with John’s brief. She had met him in the prison visiting room, and I knew she thought he was a good guy trying to make it home to his young daughter. She wrote back. While her letter lacked the love of previous letters, it did contain the warmth of friendship. That would have to be enough.
I went to work as if I was on death row and this was my last appeal. I worked right through the quiet nights. The guards were bewildered when they came past for late night counts and I was still up. I pored over other petitions to understand the language and tone that Supreme Court lawyers traditionally use. This was the first brief I would file to the Supreme Court, and I wanted to follow all the rules, all the conventions.
I wrote the appeal, which is technically called a petition for writ of certiorari. The Latin translates to a “request to review” the lower court ruling.
I wrote it over and over again by hand, making subtle improvements. Seven long, complete drafts later, I started typing it on a typewriter—we didn’t have computers. At night I would proofread the copy.
It began with two questions we wanted the Court to answer:
1. Did the Court of Appeals err when they concluded that Petitioner’s Sixth Amendment right to counsel under Massiah v. United States, 377 U.S. 201 (1964), was not violated because Petitioner was not “interrogated” by Government agents; when the proper standard under Supreme Court precedent is whether the Government agents “deliberately elicited” information from Petitioner?
2. Should the second statements—preceded by Miranda warnings—have been suppressed as fruits of the illegal post-indictment interview without the presence of counsel, under this Court’s decisions in Nix v. Williams, 467 U.S. 431 (1984), and Brown v. Illinois, 422 U.S. 590 (1975)?
That was followed by citations from Supreme Court precedents spelling out the Court’s standards for the right to counsel under the Sixth Amendment. I finished with a defining paragraph:
From these precedents, it is clear that once a defendant is indicted the Government may not deliberately elicit information from him without the presence of counsel. It is equally clear that once a defendant raises a Sixth Amendment–Massiah challenge, the question of whether the defendant was interrogated becomes constitutionally irrelevant.
Exhausted, I had John read it one more time. He signed it. I then did the unconventional thing—because I didn’t know any better—of writing a personal note in the cover letter to the Court. The letter said, in essence, that I know the Court receives a lot of indecipherable junk from guys in prison but this one is for real. Please consider it because the lower court violated about six Supreme Court decisions.
The Court, in fact, receives tens of thousands of prisoner-written briefs, and none of them makes it past the first reading—almost none. Even professionally prepared cases are rejected en masse. The small handful of cases that are accepted for review by the Supreme Court are generally written by big law firms, sometimes with dozens of lawyers working as a team. Their finished writ is bound into a booklet that includes a complete history of the issue and all the relevant lower court decisions, and these professionally prepared bound books are delivered to the court. John’s “pauper” petition was but one copy. Pauper prisoner-prepared briefs are rarely taken seriously.
John provided the postage stamps, as promised, and we sent it off. It felt like applying to college—nothing to do now but sit back and pray.
It came back immediately. There was a letter saying something was missing. As far as I could see, everything was in order, so I just sent it back again with a note saying it had been fixed. The Solicitor General’s office, our adversary here, waived response, meaning they thought it unlikely that the Court would take our case, so they wouldn’t bother arguing against our brief. They do that 88 percent of the time. It doesn’t mean you’re dead, but just about.
Then something strange occurred. Instead of denying John’s petition, the Supreme Court asked the Solicitor General to file a response anyway. The practice is labeled a Call for Response and it happens when at least one member of the Court is interested in the case; it happens around two hundred times a year. The Solicitor General soon filed the response, recommending—big surprise—that the petition be denied. We filed a short brief in reply to that, pointing out the defects in the Solicitor General’s logic.
Months went by. Nothing. John’s cert petition was on life support, but not dead.
While we waited, John was transferred to another prison. Guys are transferred when their custody points drop, which can occur for good behavior or because you are closer to release, that sort of thing. John was transferred from our medium- to high-security prison to a low-security prison in Sandstone, Minnesota. He was hoping to earn his way to a minimum-security prison in Yankton, South Dakota, to be close to his daughter. His crime was nonviolent and he had served some of his sentence, so that’s why his points were low.
I really missed his company. I tried to forget about the petition. Of course I couldn’t. But something happened that made me forget everything else.
Near David City, Annie’s mother, Rita, took a drive to nearby Columbus for a salon appointment. Her son, Danny, was coming home from school in Florida for a long weekend of family fun. Rita pulled out onto a two-lane highway and didn’t see a semitruck coming. She had just looked the wrong way, or looked and not seen it, and an instant later she was dead.
Annie didn’t know what to think. She felt like she was in free fall, completely out of control.
“Annie, I am so sorry,” I said over the phone. “If there is anything I can do, I will.”
“I want her back,” she said, crying. “I want her back.”
“What happened?”
“I don’t know. I talked to her thirty minutes before it happened. She seemed distracted about something. She gets that way sometimes.” She paused. “I wanted to be the one who could make her happy,” she said.
What can you say in a moment like that?
We talked and then corresponded. I wrote letters to her every day and sent a card to her dad. I told her I would love and care for her always, even though we were just “friends.” But it was not enough. Within weeks her weight dropped dramatically and she was hospitalized. Then she was back in the Tucson treatment center. She never made it to Bastyr, never made it to her dream school.
Dear Shon,
Thank you for your beautiful letter. Yes, I guess what I need and want now more than ever is love. I want to be held and nurtured. I want to be held and have my head caressed … to feel loved, important, safe, and cared for.
My Mom was my whole world, and I feel like part of me died with her. Now I am left to try to heal without her, and I feel so scared and lonely. My heart feels so broken and empty. So much happened this year.… I resorted to the anorexia as the only coping mechanism I have known. It has been my faithful companion for almost fourteen years now.
Love, Annie
It was incredibly frustrating to be so far away from her when she was crying out for an embrace. I think helplessness might be the worst of all emotions. It felt like Annie was on fire and all I could do was stand by helplessly while she burned.
So I did what I could do. I wrote and called and prayed. I was surprised to hear myself praying. It was, I guess, a remnant of my upbringing that I could not kick.
A couple years earlier in the snow, Tom had said I was his bad luck charm. Maybe that’s who I was to everybody. All that came back as I worried about Annie.
Since I couldn’t help Annie, I focused on accomplishing what I could with those around me. One time I was on the phone with a lawyer who was representing a prisoner friend of mine. I had prepared a solid post-conviction motion and we had mailed it to the court. The judge believed it contained enough merit to appoint an attorney pro bono, and my friend had been assigned this clown. This guy believed the motion had been filed too late. Although the court had received the motion after the deadline had expired, that didn’t matter, as there is a provision in the law called the “mailbox rule,” which says that motions filed from prison are not late if they were mailed on the day they are due. Prisoners, after all, can’t jump in a cab and drive their motions to the courthouse, nor do they have access to overnight delivery services.
This lawyer didn’t know or had forgotten about that provision, and he was about to accept defeat. I couldn’t believe it. Rarely did I allow myself to become angry, but I let this guy have it. He deserved it.
From a few things he let slip, I realized he had probably done this on purpose in order to end this court-appointed case. So it was worse than incompetence: he was throwing the fight, and if he got away with it, the cost would be years in prison for my friend.
I threatened a lawsuit and a bar complaint. I don’t remember the words, just the message. He finally relented and agreed to do the right thing. As a result, a basically good Iowa farm boy would go home early.
My body was trembling from the confrontation when I hung up.
I scanned the dayroom and everyone was staring at me, even from the railings. I must have been shouting. In a way, I was screaming at myself.
“I should talk to my lawyer like that,” someone called out from the railing, and laughter followed.
At 6:30 Wednesday morning, March 12, 2003, I was on my way to the iron pile when I saw someone running across the yard toward me yelling my name—screaming, “Shon, you’re going to die!” over and over.
My first thought was that I was about to be in a fight. My adrenaline surged, but it was Wade, a guy I knew pretty well, sprinting toward me. He wasn’t looking for a fight; he was waving a newspaper.
“You gotta see this, Shon!” He was getting closer. “You’re gonna die, man!” He had a famous Jimmy Carter smile full of white teeth, an uncommon sight in a place full of smokers, coffee drinkers, and drug addicts.
He pushed the newspaper into my hands and pointed to an article with his shaking finger. “There, man, right there, is that our Johnny boy? It is, isn’t it! Has to be!”
The Court had accepted the case. The odds of them accepting it were, well, it was the equivalent of winning the legal lottery.
WASHINGTON (AP)—The Supreme Court is taking a fresh look at police questioning and when officers must recite the “Miranda” warning to suspects they’re preparing to arrest. Justices said Monday that they will review an appeal from a man who claims he was tricked into talking to officers. John J. Fellers’ case provides an unlikely test of the landmark 1966 Miranda ruling which led to the familiar refrain beginning “You have the right to remain silent.”
He filed his appeal without an attorney. The Supreme Court receives thousands of such cases a year, but only rarely agrees to hear one.…
Guys grouped around to see what was happening. The crowd was completely mixed in terms of race, gangs, and types. Any sort of news about court action that might send someone home transcends everything. If someone is about to stab you in prison, just say, “Did you hear about the big Supreme Court decision today?”
Wade shouted as he strutted around me: “Shon here got John’s case to the Supreme Court. What do you think of that?”
Everyone was happy, especially John’s former cellmate, Robert Jones, who, once I was back at the unit, was slapping me on the back so hard I had to hang onto my breakfast. Robert was serving his second decade, based in part on a previous conviction for possession of drugs that local deputies would later admit had been planted in his house by a dirty sheriff. Robert and I had been fighting this bogus conviction for years, but, remarkably, the trial judge and the state prosecutor fought it every step of the way. In addition to honest happiness for John, the Fellers case reignited Robert’s willingness to fight for himself—a fight he continues to this day.
I ran into the unit to find a phone and call John’s mom; there was no way to call John at Sandstone. Beverly thanked me, and we talked about the next steps. She knew and I knew, win or lose, this would be a life changer for John.
I had to call Annie at Mirasol. I waited on the line a long time after I asked for her. I panicked in those few minutes, thinking someone would come on the line and tell me some bad news. But when I heard her voice on the line I sighed and said a silent thanks.
In her beautiful, quiet voice, she congratulated me and offered up encouragement. Of course, she assured me, the Supreme Court would grant my petition.
That evening I called home to David City. John Fellers’ mom had already called my parents. Dad answered. There was a long pause. “Congratulations, Mr. Famous.” He then said he was proud of me. It had been a long time since I had heard anything like that. If the rift between us was over, well, we were both glad about it.
My dad was a big believer in rules—his own, of course, but also rules generally. He was the best umpire I’ve ever seen on a ball field. When I once volunteered to help him ump some games, he sat me down first with a rule book and told me how it worked.
“You need to memorize this book. When you are out there, you are the book. People will argue with some of your calls, but you just have to stick with it. You are the rules. But that puts a real obligation on you to get it right. You have to be better than anybody else in watching the game, but you also have to be better than anybody else in knowing what’s in this book. You owe them all the best you can deliver. A bad umpire is just a waste of everyone’s time.”
He was a law man on the ball fields—baseball, basketball, football. Hundreds of kids relied on him to get it right for them. Of all the law men I had defied, he was the best. He was Wyatt Earp, mustache and all. I was seeing that now. He was excited that I was into the rule books now—the big ones. For him there was only one bigger. Rules, to him, were the wellspring of character, honor, civilization itself. I couldn’t have hit a better home run for him than this thing, win or lose, in the Supreme Court.
The next step was to find someone to argue the case. Lawyers from
both coasts realized John didn’t have representation, so a flood of them contacted the Minnesota prison where John was located. Arguing a case in front of the Supreme Court can make a lawyer’s career.
The heavy hitters who frequent the Supreme Court are not the kind to come begging, but they are the ones you want. A new breed of Supreme Court advocate had emerged in the 1990s—proficient at writing briefs that read as smoothly as novels and skilled at standing before the black-robed Nine and answering rapid-fire hypothetical questions without hesitation. They can cite the Court’s relevant precedents—sometimes going back over two hundred years—by memory, including obscure cases the justices will pull out of the blue sky. They can also argue policy matters as delicately as any politically polished senator. They do all this with a natural skill for explaining and storytelling, so that common sense, or what certainly feels like it, settles down with good humor over the courtroom—although a million pages of legal history spin invisibly in the air above them.
There is but a handful of Supreme Court specialists who routinely argue cases during each Supreme Court term. Names like Paul Clement, Carter Phillips, Walter Dellinger, Tom Goldstein, Maureen Mahoney, Jeffrey Fisher, and Ted Olson may be unknown outside the D.C. Beltway, but when issues of the moment affecting our daily lives come before the Court, they are the ones presenting the case.
Seth Waxman is one of them.
Like several, he served as a United States Solicitor General before moving to private practice and therefore is at home in this country’s highest courtroom. His path is familiar: Harvard for undergrad, Yale Law School, a clerkship for a federal judge, then working as a trial lawyer. In 1994 he took a job at the Department of Justice, ultimately rising to Solicitor General under President Clinton. As Solicitor General, he represented our federal government in all litigation coming before the Supreme Court. After his government service, Seth became head of Appellate and Supreme Court Litigation at the law firm WilmerHale, one of the largest and most prestigious firms in the country.
Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption Page 14