There was a slightly awkward exchange in U.S. v. Fowler. Justice Sotomayor asked a question that implicated the performance of the trial lawyer. The attorney arguing at the Supreme Court blamed the trial attorney–except they were one in the same.
JUSTICE SOTOMAYOR: I have one last one, the plain error question. Neither your brief — I think2you’re taking the position that simply because we3granted cert, we’ve accepted there’s a plain error; is that your position? Because you haven’t really defendedagainst a finding of plain error.
MR. CRAWFORD: Well, the trial lawyer did a7poor job in articulating the reasons for the judgment of acquittal.
JUSTICE BREYER: I take it you were not the trial lawyer?
MR. CRAWFORD: Well, unfortunately, Judge, I was. So, that’s why I
JUSTICE BREYER: Oh, you were?(Laughter.)
MR. CRAWFORD: Did a poor job of articulating the judgment of — the judgment at acquittal time, the reasons that the court should grant it and quite frankly did disservice to the district court judge, who we need to help out more.
In other words, my bad. Also, it is Justice Breyer, not Judge Breyer. (definitely check out this Green Bag article about the judge/justice divide).
Justice Breyer later bailed him out:
JUSTICE BREYER: Anyway, you’ve made a fine argument here, even if you didn’t make it
MR. CRAWFORD: Thank you, sir. I’ll do better next time.