You'd think that Ted Olson and Ted Boutrous -- among others -- would know that they tape these things. And I'm infinitely positive that they do.
Yet Justice Nares amends his opinion to add the following today. And scores some definite points in doing so:
"At page 87, following the last sentence on that page, a footnote 14 is added, stating:
In its petition for rehearing Ford asserts that our opinion erroneously states that counsel conceded at oral argument that Ford failed to raise instructional error in the first appeal. However, a review of the oral argument record shows otherwise. First, at 9:20 a.m., the following exchange took place:
"[The Court:] Are you saying there was instructional error at the trial?
"[Ford's Counsel:] Yes.
"[The Court:] Did you raise it in your first appeal?
"[Ford's Counsel:] In our first appeal, Your Honor, we focused on the third party harm issue, but we focused on the Bronco II --
"[The Court:] So the answer is, 'No'?
"[Ford's Counsel:] The answer is, 'No,' we did not specifically raise the instructional issue in our first appeal . . . ."
In rebuttal, the following exchange took place, beginning at 9:51 a.m.:
"[The Court:] But did you complain about instructional error in your appeal?
"[Ford's Counsel:] We, we did not complain about it in our, in the first go-round.""
I'd say it looks like Justice Nares wins that battle.
