Robert’s Brief Brief

“Trying a case is like boxing. If you lead with your chin, then you had better be prepared to have it knocked off.”— Capt. Robert G. Johnston

Some lawyers never darken the door of a courtroom other than their bar admission ceremony. These lawyers flourish in the paper version of the law, and their legal battles are fought by pecking away at a keyboard in a dimly lit law library. There’s nothing wrong with that, if that’s your speed. But there are also lawyers who love the thrill of the trial, the rush that comes with matching wits with another attorney, a judge and hostile witnesses. Sadly, thanks to rule changes over the years, most courtroom exchanges are somewhat anticlimactic due mainly to our pretrial discovery rules which have eliminated the old days of “trial by ambush.” One of the few exceptions to this rule is our misdemeanor criminal trial court, such as Justice Court or Municipal Court. Here, cases are still tried mostly on the fly and there has not been a thorough pre-trial discovery process. In these courts, lawyers still think on their feet and prepare legal arguments almost simultaneous to hearing the evidence and testimony for the first time. Many attorneys, even very good ones, aren’t cut out for this type of combat. Lawyers are a careful, conservative breed by nature so most of them avoid the uncertainty of unknown witnesses in a court of no record. It is in this arena, however, that my friend Robert Johnston was at his best.

Robert was our Municipal Court Prosecutor for more years than can be counted. He was infamous in defense attorney circles as an infuriating and maddening opponent, due largely to his refusal to concede any point, no matter how minute. Before trial, Robert offered very favorable plea bargain deals to the defense but if a case had to be tried, then all bets were off. Robert attacked witnesses like a rabid German Shepherd and used his knowledge of the rules of evidence and trial tactics to bludgeon many a defense attorney into a well-dressed mass of confusion. I was appointed to the City bench in 2003, and I heard Robert’s arguments so many times through the years I can recite them in my sleep. I even caught myself quoting Robert (by name) in another civil case of my own earlier this year. When I later told Robert of my quoting him to another court, you could tell he was proud. Ask anyone who ever dealt with him in city court— Robert had a well-deserved reputation for his dogged determination and courtroom antics. He would say almost anything to a witness, and was fearless in his arguments to the Court. Not all of his arguments were always on target, and I spent many afternoons shaking my head at some outlandish analogy Robert used to try to secure a conviction. One particular story came to my mind the other night as I remembered all of our days in city court together.

Several years ago, Robert and another lawyer tried a second offense DUI for the better part of four hours one afternoon. The case involved many close legal calls on my end as judge, and the two of them fought and argued (loudly) over what seemed like every single point in the case. They clashed over everything from the authority of the policeman to be a policeman to the traffic stop itself. If I recall correctly, we spent 30 minutes that day discussing whether the breathalyzer was working properly or not. Ultimately, however, I found Robert had proven his case, and the defendant was guilty as charged.

As I was moved into the sentencing phase of the trial, the defense attorney asked whether he could make a short closing argument before I sentenced his client. I have certainly always wanted to err on the side of caution, so I tried to make sure every defendant felt as if his rights were protected during his “day in court.” Per the rules, I allowed Robert to speak on behalf of the city first. Robert merely stated the law as we all knew it with regard to the penalties for a second offense DUI conviction, including the Court’s duty to sentence the now-convicted defendant to a minimum of five days in the county jail. Robert, for once in his career, was very short with his argument. We were all familiar with the law. Or so we thought.

When I turned to the Defendant, his attorney confidently stood up and admitted the statute said what it said. But, he said, the Mississippi Court of Appeals had recently come down with an important ruling that would impact our case. According to the defense attorney, the Court of Appeals had ruled within the last month or so before our trial that a defendant in the same shoes as his client, a man convicted of a second offense DUI, would be eligible to have his charge non-adjudicated, or basically passed to the file with certain conditions before it is ultimately dismissed by the Judge if those conditions were met. Ordinarily, only a first offense DUI was eligible for this type of leniency from a trial court.

Robert, who prided himself on “reading the advance sheets of the Southern Reporter as soon they are released,” was stunned by this assertion. I looked over at his desk when I heard his gasp, and in hindsight, his head was almost spinning around like Linda Blair in The Exorcist. He shot out of his chair. There’s absolutely no way, Robert yelled.

“Nothing, and I mean nothing, Your Honor, makes me angrier than when a young lawyer is not truthful and honest to the Court. A second conviction for DUI means jail, not non-adjudication!” Robert boomed.

I had already flipped my copy of the Mississippi Code over to the section covering DUI charges and penalities. Under the then-Mississippi law, a second offense DUI required the defendant to be sentenced to a minimum of five days imprisonment, if convicted. The statute was very clear in that area. The section of the statute about non-adjudication was listed under the penalties for a first offense, not a second offense.

Without blinking, the opposing lawyer reached into his file and came out with two small stacks of paper held together by a paperclip. Robert was still yelling something when the attorney interrupted him as he walked toward my bench.

“Here’s the case,” the attorney said while handing me a copy and his other copy to Robert. Robert and I were both skimming this new case furiously when the defense attorney resumed his argument.

“I understand what Mr. Johnston is arguing, and it might be what Your Honor has done in the past, but this Court says a second offense DUI is eligible for non-adjudication,” the defense attorney explained while waving his copy of the case in the air.

I read the case as quickly as I could. This particular case did involve a second offense DUI charge, but rather, the issue on appeal was the actual traffic stop, or the reason why the police department had detained that defendant. However, in the very last paragraph of the opinion, the Court stated something to the effect of the second offense conviction “wouldn’t matter because the defendant appears to be eligible for a nonadjudication.” I’ll be damned. Here’s the real kicker- the attorney who brought this case on appeal before the Court of Appeals was the same attorney who was now waving this reported case in my face. Of course, he knew about this case— it was his case.

Robert found the pertinent paragraph in the new case about the same time as I did. Being the ever-alert prosecutor, Robert also quickly realized the crux of the case on appeal was not centered around the penalty to be imposed by the Court.

“Your Honor, it’s just dicta. The Court is just talking here. With all due respect to the Court of Appeals, no reasonable person can read our statute and come to this conclusion,” Robert yelled. “This case,” Robert said as he waved his copy in the air, “is not even about non-adjudication. Whatever the Court says about is dicta. Pure and Simple. Surely Your Honor can see that,” Robert pleaded. But you could hear the uncertainty in Robert’s voice when he spoke.

For the uninitiated to obscure legal jargon, “obiter dictum” is defined by Black’s Law Dictionary as a “judicial comment made during the course of delivering a judicial decision, but one that is unnecessary to the decision in the case and therefore not precedential.” Precedent is very important in the legal field because of the doctrine of “stare decisis,” or a court’s duty to follow earlier case law when deciding a case with similar facts. Courts follow the decisions of earlier courts in order to bring consistency to the rule of law. However, not everything in a court’s opinion must be followed. Sometimes judges just opine to opine and their words have nothing do with the question presented. Hence dictum, or its plural, dicta. Dicta might be interesting, but subsequent courts aren’t required to follow their lead. Simply put, unless the Court’s opinion is related to the merits of the question presented, its comments are not binding on future courts- it’s just dicta.

The defense attorney knew he had stumbled upon the Great White Whale of Cleveland Municipal Court– a moment when he had caught Robert Johnston off-guard and unprepared. Naturally, he moved in for the kill.

“Mr. Johnston just doesn’t like what the Court says about this issue, Your Honor. But the Court clearly states that this defendant, a man charged with a second offense DUI just like my client is charged, would be eligible for a non-adjudication. Logically speaking then, my client is eligible. It says what it says, Your Honor.”

I was a bit out of sorts myself. If this case said what I’m being told it says, then everything we have been doing in our court has been wrong, I thought. I asked both attorneys to give me a moment to read the case in a little greater detail, and once I finished reading, then I would allow them each a quick final word.

Realizing he would need more time than the two minutes I was about to grant him, and not about to go down easily, Robert quickly asked for a couple days to submit a brief on this new wrinkle. I knew from experience that if I gave Robert too much time, then he would send me a brief that would make War and Peace look like a travel brochure. I did not particularly want anything more to read, but I was a bit curious myself. This issue appeared very clear when I read the statute, and I could not believe the higher court had misstated such an easy point of law. Our court meets on Monday afternoons, so I decided to give them a little time.

Both of you have until Friday at noon, I said. But please try to be concise, I reiterated. I looked directly at Robert when I said the word “concise,” and I asked him specifically if he understood.

“Yes, Your Honor. Concise. Absolutely,” Robert said while nodding his head quickly. “I understand.” With that final thought, I adjourned court for the afternoon.

Thursday morning, I received a small package in the mail containing the Defendant’s brief. Just as I figured, the attorney just took his earlier brief to the Court of Appeals and changed the names of the parties and the facts to fit our current case. He only had to add the citation of the new Court of Appeals case and highlight the section of its opinion that favored his argument.

The following day, I was reading the Defendant’s brief shortly before lunch when Robert walked through my office door holding a massive stack of paper at least 4 inches thick and held together by a thick rubber band. I took one look at the missive in his right hand, and started shaking my head.

“Robert, your brief doesn’t look so brief. Remember concise?”

A wry smile spread across Robert’s face.

“I apologize, Your Honor, but I hope you will indulge me. I think once you get in my brief, you will see that I was very concise.”

“We shall see,” I said as I took the tome from his hand and put it on the corner of my desk. Robert disappeared with his usual dramatic flourish and left me alone with our legal issue.

Figuring I would need some energy, I grabbed a bottled water from my office refrigerator, loosened my tie and then reached over and grabbed Robert’s brief. Fearing what lay ahead of me, I took a deep breath and removed the rubber band. Ok, Robert— What do we have?

As expected, the first page of Robert’s brief contained the name of the case and a short recitation of our facts through the prosecutor’s lens. Towards the end of the first page, Robert stated the issue before the Court-. whether aa person charged with a second offense DUI was eligible for a non-adjudication. He cited the case cited by the Defendant, and quoted its language. I flipped the page expecting to see a long legal argument, but instead, I only saw one word. For his argument, Robert centered a single word, in 55 point bold type, on the page.


Then the next page.


And then the next.


So it went for over one hundred pages. Page after page contained this one single word perfectly centered in 55 point bold print– “Dicta!!” Robert used the very last page of the brief to summarize the existing statute, and to explain his position that the new case produced by the defense contained no binding authority on our issue but that Court’s discussion of the statute was merely a non-binding aside. (As if I had not noticed the other one hundred pages?) Just read the statute and use common sense was Robert’s final plea.

I couldn’t help but laugh. Only Robert would even think of sending in a brief like he did. I opened the brief two or three more times that afternoon just to laugh again. After a little bit of my own research including a call to the Assistant Attorney General who argued the new case, I finally decided the Court of Appeals was wrong in its interpretation of the statute. I wrote a short letter to Robert and the defense attorney stating my opinion that the defendant was not eligible for a non-adjudication and I would sentence him under my reading of the statute. I invited the appeal as I was hoping it would go all the way up to the Court of Appeals again. Instead, the defendant took his five day prison sentence and was never heard from again. Ironically, that defense attorney subsequently appeared in our court probably twenty times after my ruling and never argued that case again. The Mississippi Legislature amended the DUI statute a couple years ago and changed a great deal of the language about non-adjudications. Some would say it became clearer; some would say it did not.

Every so often, I would remind Robert of his “dicta brief” whenever he would ask if he could write a brief on a new point of law in our court. He would snicker and nod his head.

“Well, it was dicta, Your Honor!” was his standard response. “I’m just glad I was able to show it to you.”

Yes it was. And yes you did.

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