Sometimes, after reading a Ninth Circuit opinion, I go back and listen to the tape of the oral argument in the case. Just to see what the panel (and parties) argued and how these arguments were reflected and resolved in the opinion.
You typically hear fairly aggressive contentions, by a counsel excited by the abilty to argue before the Ninth Circuit. The attorneys usually take up all their time -- and, often, even more -- and are eager to present their arguments before the court.
But not in this one. The defendant had won a motion to suppress below, the government appealed, and at the oral argument, the U.S. Attorney spoke only very fairly briefly -- for around five minutes. Then, when it was his turn to argue, the public defender answered a question from the court, and after doing so, basically said "Everything else I'd say has already been argued in the briefs, so unless you have any further questions . . . ." At which point the panel, not surprisingly, essentially said: "Nah. Thanks. We appreciate it. More time for lunch for us."
Which was probably, in retrospect, not the greatest decision in the world by the public defender. Since the panel then unanimously reversed.
Admittedly, with Judges Hall and Milan Smith on the panel, and with the issuance of a warrant, you're not looking too good in trying to defend a suppression motion. So maybe one could legitimately think that the less one spoke, the better one's cause. Or, alternately, that it wouldn't make a difference anyway.
Still, one might have wanted to give it a hard core shot. Which most attorneys would probably have done, if only for reasons of vanity.
Interesting tactical decision here.
P.S. - Happy fourth birthday, Jack Martin. I'm figuring this is about the age one gets a paying job, no?
