Spokane attorney to argue before U.S. Supreme Court

Colin Mulvany photo

Daniel B. Johnson soon will become one of the few local attorneys to argue a case before the U.S. Supreme Court.

December 2, 2012 - Updated: 6:17 a.m.

The day in 1978 when Matthew R. Descamps broke into the CentroMart in Stockton, Calif., the man who would later argue for his freedom was settling into his second year of law school at Gonzaga.

Descamps’ life drifted in and out of crime, including two felony convictions for assaulting officers and another for threatening to kill a Pend Oreille County judge. Daniel B. Johnson, meanwhile, built a modest law practice in Spokane, including more than 20 years of defending those charged with federal crimes.

But that CentroMart burglary some 34 years ago has intertwined the lives of both men, one seeking to reduce his prison sentence, the other preparing for the pinnacle of his legal career: arguing Jan. 7 before the U.S. Supreme Court.

“It’s a lot of studying for 30 minutes of arguing,” Johnson, 57, said at his office on North Division Street. “You have to prepare for questions they might ask. So it takes a lot of time and effort.”

Johnson, on Descamps’ behalf, appealed a decision in 2008 by U.S. District Judge Fred Van Sickle, who sided with a prosecution request to declare Descamps an armed career criminal. As a result of that enhancement, Van Sickle sentenced Decamps to nearly 22 years in prison versus the statutory maximum of 10 years for the conviction of felon in possession of a firearm.

Johnson’s legal argument essentially breaks down to definitions. California’s definition of burglary is slightly different from the federal code. Johnson is arguing that because of that difference, Van Sickle improperly used the 1978 burglary as one of the convictions necessary to declare Descamps an armed career criminal.

“He’s got a great issue. However, it’s an issue only a lawyer can love,” said Spokane lawyer Jeffry Finer, who also teaches law at Gonzaga. “Dan has a shot because it’s an important issue, but not a revolution.”

While the 9th U.S. Circuit Court of Appeals sided with the prosecution and Van Sickle, other circuit courts around the country have handed down differing opinions about whether judges should use the simple definition of burglary or use the underlying facts of the case to determine whether the conviction could be used to lengthen sentences.

“The issue here: Does this burglary in the 1970s qualify or not?” Finer said. “More importantly, what is the test? How will we decide in the future … which convictions qualify and which ones don’t?

“It will affect many people, but not thousands,” Finer added. “It will change sentences but not throw out convictions.”

Johnson said the decision could also have ramifications for immigration cases by helping to define which convictions would prompt deportation.

He has received help from local attorney Matthew Campbell and the Federal Defenders of Eastern Washington and Idaho. Johnson and his wife, Concepcion, plan to travel to Washington, D.C., several days before the argument.

On Jan. 4, he will take part in what’s called a moot court at Georgetown University Law Center, where professors and students will act as justices and give Johnson a chance to practice his arguments.

Finer said arguing before the nation’s highest court will be something Johnson will always remember.

“It unfortunately is probably a once-in-a-lifetime experience,” said Finer, who argued a case before the nation’s high court in 1996. “But it’s a phenomenal experience.”

Only a handful make the show

With his appearance next month, Johnson will become one of only a handful of attorneys in the Inland Northwest who have argued before the U.S. Supreme Court.

U.S. District Court Judge Robert Whaley, who won a multimillion-dollar antitrust decision for several Spokane gas stations in 1989, said an attorney’s experience begins in the basement of the regal Supreme Court. A clerk scrawls the lawyer’s name on a piece of paper, spelled phonetically, so Chief Justice John Roberts will know how to pronounce it.

“For a lawyer, it is a very significant experience,” Whaley said. “The people who questioned me were giants in the field. It was humbling to come from Spokane. It was quite moving.”

Attorneys who argued from North Idaho include Ray Givens, now of Bellevue, who argued twice before the high court in winning two 5-4 decisions in 2001 for the Coeur d’Alene Tribe relating to the disputed ownership of the lower third of Lake Coeur d’Alene.

Coeur d’Alene attorney Kenneth Howard lost a 6-3 decision in 1990 on behalf of families of Sunshine Mine workers killed in an underground fire in 1972. Howard argued a wrongful death suit against the United Steelworkers of America but lost in both state and federal courts.

Sandpoint attorney Ford Elsaesser won a case 9-0 challenging the ability of judges to vacate their previous rulings when both parties agree to do so, stemming from a bankruptcy issue concerning a mall in Sandpoint.

“I would say without hesitancy that it was the greatest experience of my professional life,” Elsaesser said. “Even in this majestic institution, the clerk’s office is just like the clerk’s office in Sandpoint or Asotin. They are easy to talk to … and give helpful hints, like don’t lean on the podium because it’s 200 years old.”

To a person, the attorneys who argued before the high court were surprised to find how close they actually stood to the justices.

“You can almost shake hands with the chief justice,” Elsaesser said. “You virtually never get to give your prepared argument because you immediately get interrupted by questions.”

Bringing a feather to a knife fight

Whaley, who was appointed federal judge in 1995 and now has senior status, said it’s important for Johnson to watch arguments in advance of his appearance so he can avoid stage fright.

“You may have something you want to say so bad that you don’t listen to the question,” Whaley said. “The question may be signaling something to you. I never prepared for anything in my life like I did for the argument before the Supreme Court because I respected it so much.”

Givens said the questions most often come first from the justices who oppose your position.

“You need to have already worked out how you will respond to that,” he said. “Usually they ask a question to highlight a weakness of your argument. The hardest thing is when they are asking you a question and the answer isn’t important to them, but important to another justice who will sway the vote.”

Finer said he could foresee his drubbing long before the justices rendered their 9-0 defeat to his case in 1996 on the issue of whether separate criminal and civil forfeiture proceedings constituted double jeopardy. The case had major political ramifications because it could have overturned thousands of cases and affected billions of dollars worth of property seized by the government.

Finer said the clerk at the Supreme Court prepares a sharpened quill that attorneys get to keep as a memento.

“It was like bringing a quill to a knife fight. I was sliced to ribbons,” Finer said. Then-Chief Justice William “Rehnquist turned his microphone off two minutes into my argument. It was his way of saying … ‘You are wasting my time.’ It wasn’t so much a legal argument as nine justices who jumped me in an alley and cut me.”

Finer said he spent nearly a year preparing for what was later picked as one of the top 10 legal losses of the year.

“It’s been my secret desire all these years to go back and get another shot,” he said. “But it’s not likely to happen.”

While the experience will be monumental, Johnson noted that the legal decision will have real-life implications.

“So far I’ve lost, unless the court reverses,” Johnson said. “Hopefully I can win and get it back for resentencing. My most important issue is my client.”


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