Document - Historical interview notes - William Mitchell College of Law Magazine - 12/1/1998 —� _ r---
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B Moll Guthre
By y y legal preparations as the case headed toward the
courtroom equivalent of the World Series.
ND THEN, FINALLY, there is no more time to Sleeping became difficult. Eating habits changed.
prepare. Their spouses became sounding boards for constitu-
The day has come. tional law issues.The lawyers found themselves lost
Dakota County Attorney James Backstrom, '78, in thought over the case at the barbershop,in the
d Assistant Minnesota Public Defender Brad car,at the grocery store.Their lives were filled with
olbert, '85,opposing counsel in law,stand legal research and mock arguments.They fielded
gether,tiny figures in front of the U.S. Supreme calls from law professors and lawyers across the
'curt building. country as the case was discussed at legal confer-
ences,on television shows, and in newspapers.
to of Minnesota v Wayne Thomas Carter and Along the way,both sides created legal teams to
Melvin Johns.Backstrom and Colbert have spent assist the lead lawyers.Backstrom's co-counsel were
seven months preparing for this day,Tuesday, Oct. 6. Phil Prokopowicz, '83,and Charlie Diemer, '75.At
Backstrom's brow sweats. the state public defender's office, Scott Swanson,
Colbert's palms are clammy. '87,and Marie Wolf,both assistant state public
"Good luck,"Backstrom says, smiling as he defenders,also immersed themselves in the case.
shakes Colbert's hand.
"You,too,"Colbert replies. 1T WAS MAY 1994 when Eagan police officer
Mr.Backstrom and Mr. Colbert have come to Jim Thielen,acting on a tip, crept up to an apart-
Washington. ment and peered through gaps in the closed
It's been a long road. window blinds.
Inside,he saw the woman who rented the apart-
SOME
part-
SOME LAWYERS spend their whole lives practicing ment and two men who were guests.They were
law without experiencing this moment. packaging cocaine. Police later arrested them out-
During the high court's annual term, the justices side the house with 47 grams of the drug.
are asked to hear oral arguments in about 7,000 A judge found Carter and Johns guilty. Both men
cases.They accept about 85 to 100 of those cases. challenged their convictions,arguing that the evi-
This year,the Minnesota case is one of them. dence of their drug business was unlawfully
The case centers on a police officer's decision to obtained without a search warrant.The apartment
peek through gaps in the closed Venetian blinds of
an Eagan,Minn.,apartment window to verify a tip
that people were bagging drugs at a table.He did Molly Guthrey is a staff writer for the Saint Paul Pioneer
Press.This article was published in the Oct.11,1998,
not have a search warrant. issue of the Saint Paul Pioneer Press and is reprinted
That one little peep eventually would immerse here by permission of the Saint Paul Pioneer Press and
Backstrom,45,and Colbert,41,into all-consuming the author.
U.M
and ..11r.. Colbert
Go to the Su.- eme 1 ,ouil
-pr
2 WILLIAM MITCHELL
tenant,Kimberly Thompson,was also convicted on P R 0 K 0 P 0 W I C Z, one of the prosecutors, learned the
drug charges but did not appeal the matter. news when a journalist called him March 9:The
Last year, the Minnesota Supreme Court threw U.S. Supreme Court had agreed to the Dakota
out the men's convictions. The County attorney's request to
officer took"extraordinary review the case.
measures"to look into the Prokopowicz immediately
apartment,the court said, and knew it meant the peek
should have had a search war- would land in the law books.
rant.The court also ruled that "Are you sure?"
the men,as guests,had a right : Prokopowicz asked the
�a
to privacy. reporter.
Carter had finished serving n It felt like the office had
his prison sentence when the just hit the legal lottery
convictions were voided. Butu jackpot.
� "
Johns,who has changed his The news hit just as hard� �'� �; ;
name to Khabir Abdul Wakil, at Twin Cities offices of the
had six years left to serve state public defender. In the
��� ��o�tcinS"erles
when he was released and �� weeks ahead,the news of the
faces a return to prison if the � high court review left
Supreme Court overturns the Minnesota decision. defense attorneys Swanson and Colbert with a
Both men,who live in Chicago and say their lives difficult decision.
now center around family and work, traveled to Only one lawyer for each case traditionally stands
Washington to attend the arguments. before the Supreme Court for oral argument.
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Assistant state public defenders(from left)Scott Swanson,187,and Brad Colbert,'85,talked with Dakota County Attorney
James Backstrom,'78,before oral argument in State of Minnesota v.Wayne Thomas Carter and Melvin Johns at the U.S.
Supreme Court Oct.8.
WINTER 1998-99 3
/ 1
Swanson was Carter's attorney,while Colbert cism of a police officer who lacked a search warrant
represented Johns.The cases had been consolidated when he peeked into an apartment with tightly
for the argument before the Supreme Court. closed blinds.
After scrapping plans to split the allotted time or
hold a secret ballot among colleagues,they decide BACKSTROM looks down at the Potomac River from
to toss a coin for the honor. Delta Air Lines Flight 1702 as the plane approaches
Colbert won. Washington.The
Swanson shook his
der � Y day is sunny,but
hand. si
Backstrom feels anx-
Nobody neededti}strie ious as he thinks of
a coin at the prose-
what lies ahead.
irupreme
tutor's office. �'�y Washington is
Backstrom, the county awash in big news.
attorney,decided to r The House Judiciary
. ustrces `, .:
handle the argument :. Committee is
himself.Prokopowicz, �=
preparing to vote on
head of the criminal division,would work on the beginning an impeachment inquiry against President
written legal papers and Diemer,chief deputy prose- Clinton.Visiting dignitaries are arriving for the
tutor,would help where needed. annual meeting of the International Monetary Fund
and World Bank.An exhibit of Vincent van Gogh's
THEY CALL IT a mock argument.But Colbert is paintings is opening at the National Gallery of Art.
under siege.
� Kr
Fifteen assistant public defenders sit . :
around a table at their office in Minne-
apolis and throw questions at him,just }
like the Supreme Court justices will do a f o
LU
few weeks later. "
�.
Colbert grips the podium and tries to
� a
answer succinctly and slowly. In one five- - w
LEGAL RESEARCH AND MOCK ARGUMENTS.Right.Backstrom(nearest
camera)spent many hours with members of his staff preparing for the oral 0.
argument.Lower right:At the Minneapolis office of the state public - - -
��� z
defender,15 assistant public defenders threw questions at Colbert.
U
minute period,he i interrupted
s with
questions 18 times. °
His colleagues make some queries in a
hostile tone.That's the way, Colbert has
learned, the Supreme Court sometimesCn
F Z
s
operates. Lawyers who aren't prepared
t:. 1i , ,
are dissolved into humiliated puddles by
a
the justices.He's argued cases before the
Minnesota Supreme Court.There,the iw W
justices ask intelligent'questions in a FCA
W
pleasant manner. If a lawyer appears to
be floundering over a question, they are W
inclined to let it go. But to U.S. Supreme a
Court justices, a floundering attorney is
like chum to sharks.Irresistible. ~ z
That notion keeps Colbert preparing.
And there's a lot to prepare.The defense
expects the prosecution to argue the men
were brief guests in the woman's home,
engaged in illegal business, and not tradi-
tional social visitors. But Backstrom has legal issues,not current events,
It could be an important distinction.The U.S. on his mind.
Supreme Court has ruled that overnight guests are As soon as his plane lands,Backstrom is caught
protected from unlawful searches.The prosecution, up in the swirl of final preparations—a mock argu-
on the other hand,must contend with expected criti- ment at the Justice Department,reading case law,
rewriting the opening remarks in his oral argument,
and huddling with Prokopowicz and Diemer about
the case.
4 WILLIAM MITCHELL
"Boy,that's nice,you
E W look right out at the Capi-
tol,"Diemer says.
o "You can't see that in
M " m Hastings,"Backstrom says,
studying the skyline for a
long time.
Still,amidst all their
k a hard work,the lawyers
` want to remember the big
picture.So,while they're
in Washington,both sides
visit the National Archives
to see the original copy of
. - the U.S. Constitution.
,
" T The document is badly
_ 3y faded,encased under
glass.In court,they
will be arguing over
w iv
Y its Fourth Amend-
' Ment—the r..
y
x - protection against �
as .
F w unlawful search and
izure -F
_ •
Y Se •
f� tl• k4v '.i R kre3+'t� y ._
- THE PREPARATIONS
w covered more than t:
law.The pink shirt
must be discussed.
oil
Wolf delicately
broaches the topic
t while she and Assis-
. taut State Public
Defender Susan
Andrews sit in a
museum cafeteria
4e eT�
with Swanson on aEcs�lzca�
Sunday,two days
-� before oral arguments.
Lawyers about to argue a
case before the U.S.
Supreme Court consider it
a risky move to deviate
from the conservative
Following the court session,Minneapolis-St.Paul and other reporters sought lawyeriy uniform of white
Backstrom's characterization of the case and how the oral argument went. dress shirts and gray,black,
Backstrom does a little sightseeing with his wife or navy blue suits.Their feeling: Creativity in legal
and daughter, too. But he won't ever forget why he strategy is good. Creativity in dresswear is bad.
is in town. Sitting on the steps of one museum,wait- Swanson has long hair that he wears in a ponytail.
ing for his family,he finds himself looking at his There had been previous discussion of a haircut.He
case notes. had decided against it.
Later, Diemer and Prokopowicz are pretending to "Everyone sort of feels like, `OK,we give you the
be Supreme Court justices,hammering questions at ponytail,can't you give us the white shirt?"'Wolf
Backstrom late Sunday as they sit in a borrowed says gently.
office in Washington.The conference room is littered "Hey,"Swanson responds with a smile,"I gave
with their court papers.The lawyers duel for so long you the new socks!"
that Backstrom's voice goes hoarse. "God,what kind of socks?"asks Andrews.
Suddenly,when they look up from their notes dur- "Probably argyle."
ing a break,they notice the glittering Washington "Maybe you should just borrow a robe,"sighs Wolf.
skyline from the conference room windows. "I think you should wear whatever you want and
Outside,the Capitol shimmers in the night like a
white beacon.
WINTER 1998-99 5
see what happens,"says Andrews. "That's because He looks tired and stressed.Luckily,his wife and
I'm not sitting anywhere near you." extended family are in town for the oral argument,
The women are half serious,half relieved. After and they get him out of the hotel occasionally for
all, Swanson had once talked about wearing a meals and even to the van Gogh exhibit.
striped shirt. The team's stress is clearly evident the night
That was too painful to think about. before Tuesday's arguments. As the attorneys—
without Colbert—sit in a trendy pizzeria,there is a
WOLF —who will sit at counsel table in the lull in their conversation as diners around them chat-
courtroom with Colbert and Swanson—won't be ter happily in the brightly-lit cafe.
giving the argument, but she still entertains some "This is the most miserable time—just waiting,"
worries: attorney Cathryn Middlebrook says.
What happens if Brad faints? "It's kind of like waiting for the execution,"
What if Brad has a heart attack? Would we go Wolf adds.
on? Would they just wheel his body out and have
Scott stand up? MEANWHILE, Backstrom has found a way to relax.
What if I throw up? After his voice hoarsens again during another mock
But Wolf has bought a sharp black suit for the arguments,preparation stops and the attorneys head
arguments. If she throws up, at least she'll look good back to the hotel.
doing it. Backstrom sits in the hotel sauna and wraps up the
day by watching the Monday night Minnesota
_ ° Vikings and Green Bay Packers football game on
L F 1 h_ television. He manages to almost forget about
T'd f 3 § a _ W
,.
4CL
the pending argument.Almost.
Across town, as night overtakes a pink
W
Washington sunset,the brooding statue of
F o Abraham Lincoln,illuminated in a golden spot-
- ` m light,stares out at the still,dark Reflecting Pool
on the National Mall.
- W In the warm night outside the Lincoln Memo-
o
o rial,crickets sing as Andrews,Middlebrook,
--- Swanson,and Wolf stare up at the 19-foot
white marble statue of Lincoln.They have come
-- here to find peace the night before the argu-
ments. It works.
3'
_. IN THE mild October sunshine, the U.S.
Supreme Court building,with its giant fluted
Corinthian columns and white marble exterior,
looms over Backstrom and Colbert as they
head inside.
Once in the marble hallways,the men are
° = escorted into a bronze-decorated elevator,ush-
ered into a lounge and given instructions by the
clerk of the court,who is—as the formal ways
After oral argument, of this court dictate—dressed in a dove gray
Colbert talked with the SWANSON remembers when a group of public morning suit.
respondents,(from left) defenders traveled to Nashville,Tenn.,for a con- An edgy calm overtakes Backstrom and Colbert as
Khabir Abdul Wakil, vention. Colbert was the life of the party back then. they finally walk into the courtroom,with its dark,
formerly Melvin Johns, The lawyers,who might have been content to stick polished mahogany furniture,red velvet draperies,
and Wayne Carter.
an appeal to the close to the hotel during their free time,were roused sprawling ceiling, and Italian and Spanish marble
Minnesota Supreme into action by Colbert,who persuaded the group to columns and walls.As the minutes pass,each as
Court and to the U.S. drive four hours to Memphis to tour Graceland, the heavy as a stone,the lawyers wait.They speak with
Supreme Court,Colbert home of Elvis Presley. colleagues and family members about the room, the
represented Wakil,and But on this trip,it is evident that Mr. Fun has weather,anything to pass the time.
Scott Swanson transformed into Mr. Legal Hermit. Colbert spends Colbert and Wolf return to the lounge during this
represented Carter. hours alone in his room, studying court cases.As the wait, and he tells her it's probably best if Swanson
other six attorneys (most of whom have paid their remains in the courtroom.Because, Colbert tells
own way here just to be part of the experience) see Wolf,if Swanson has made a last-minute push to
the sites—the U.S. Holocaust Memorial Museum, argue the case, Colbert fears he would have said,
the Smithsonian Institution,Arlington National "Take it,it's yours."
Cemetery—Colbert remains in his room. Finally,it is time to sit at counsel tables,just a few
feet from the long bench of the nine justices, so close
6 WILLIAM MITCHELL
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NOT JUST ANOTHER DAY IN COURT:Backstrom leaves the Supreme Court building after the 60-minute session ended.
f
they will be able to see the wrinkles on the jurists' photograph of his two little girls. It calms him. Even
faces. Colbert has Swanson and Wolf at his side. so,he doesn't forget his surroundings today.The jus-
Backstrom sits next to Prokopowicz.A buzzer tices lean back and forth in their oversized black
sounds.The entire room stands quickly to see the leather chairs. Some rest their chins on their hands
black-robed justices enter the room with a swoosh and gaze intently at Colbert.
as the marshal of the court cries out In 60 minutes,it is over.
that the court is now in session. I Backstrom and Colbert smile as they
After Chief Justice William walk buoyantly out of the courtroom,
Rehnquist says, "Mr. Backstrom," shaking hands with people.
Backstrom speaks. He lays out his Now the wait begins. It could take
argument for about one minute nearly a year for the justices to issue
before Justice John Paul Stevens an opinion.
jumps in with a question about fed-
eral and state laws. He's joined by AT H 0 ME, one day later, Colbert is
most of the justices during R' back to being an ordinary public
Backstrom's comments. defender,preparing court papers and
Backstrom, fighting a cold, talking to colleagues and clients.
coughs before he answers some of In fact, Colbert is so quickly
their questions and concedes little. immersed in his everyday life that he
He stands up to Justice David etY begins to wonder if he imagined the
Souter as the jurist sharply ques- ° :y: whole Supreme Court experience.
tions him. Rehnquist cracks a joke. v "I know what Dorothy must have
._
A crowd of about 200 watches, .� felt like when she woke up in Kansas
including Carter and Johns,Thielen, in The Wizard of Oz,"he said. "Now
and Backstrom's 10-year-old daughter. I know what Dorothy meant when she wondered if
Colbert doesn't even reach the podium before Oz had just been a dream."
Justice Sandra Day O'Connor asks him a question. High court's decision in Minnesota v.Carter and Johns comes
A barrage of questions follows from other justices quickly.News story,page 17.
about the police officer's window peek. On top of
one of his small note cards, Colbert has pasted a
WINTER 19913-99 7