The New York Times reports on a recent Supreme Court oral argument which seems to have gone off the rails (ever so) slightly when the Justices mused over the existence of the mythical trial lawyer who fails to object to an unfavorable ruling at trial, thus taking the chance that an appellate court will rule favorably on an issue between the time that an issue affecting her client comes up at trial and the time that her client's own case comes up for appeal. In the case before the Court, the appellant had pled guilty and received a longer sentence than he would have had he gone to trial and been found guilty; his reason for the plea deal was his desire to receive drug treatment while in prison. However, between the time of the plea deal and his appeal, the Supreme Court ruled in another case that the "Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant's rehabilitation." The attorney had not objected to the deal because, as she explained to the Justices, "I was not aware of that statute." Well, maybe not. Even if she had been, though, could she have foreseen that the Court would interpret the statute in this way?
The idea that trial lawyers will fail to object in the hope that a later ruling will help their clients is fanciful, he added. “The lawyer who thought that is like the unicorn,” Justice Breyer said. “He doesn’t really exist.”
Justice Scalia agreed that a lawyer who decides not to object for strategic reasons “is a unicorn, I suppose.” But he added that requiring objections at the risk of serious harm to a client’s interests may make some lawyers more careful, including those “unaware of a statute that they should have been aware of.”
Justice Elena Kagan was unconvinced. “Isn’t it just as much of a unicorn for an attorney to say, ‘I’m not going to take great care because I think that the law is going to change between now and the appeal’?” she asked.
The Chief Justice asked the attorney in the case for the appellant for her views, and she sort of muffed her response, referring to Chief Justice Rehnquist as "Justice Rehnquist." The present CJ corrected her, and then said, "It matters to one of us." Later in the questioning, she again referred to CJ Rehnquist as "Justice Rehnquist." Oops. Never mind. More than a mistaken identification by a nervous attorney is needed to transform a CJ into a "mere" Associate Justice. Or an attorney who isn't psychic. Or a unicorn.