Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption

by Hopwood, Shon

  Few attorneys ever have the chance to argue a case before the Supreme Court. Fewer still argue multiple times before the High Court. Yet Seth has stood at the podium and said, “Mr. Chief Justice, and may it please the Court …” over fifty times.

  When things are meant to happen, answers often arrive from several directions at once. The National Association of Criminal Defense Lawyers (NACDL) frequently files amicus curiae (“friend of the court”) briefs with the Supreme Court. An amicus brief is a supportive argument offered on behalf of one side of a case or the other. For example, if a developer was suing a community for refusing to let him develop a parcel because it was an important wetland for birds, a Sierra Club lawyer might file an amicus brief to advise the justices on issues that might not be raised by the litigants. So criminal law cases that might affect thousands of criminal cases will often merit an amicus brief from the NACDL. Someone working for the association saw that the Fellers case had been granted without the assistance of a lawyer and sent a note to Seth Waxman, asking him to investigate. John Fellers’ previous attorney had received a recommendation from another attorney, saying that Seth would be great for the case.

  John got brave and just called Seth Waxman, and somehow Seth ended up on the line and said he would look at the case. And he did. When John Fellers telephoned his office, Seth was still in the first years of his post-government career with a slight hint of gray in his temples, an athletic face like a runner, glasses, and a very wide smile.

  I received a letter from Beverly Fellers a few days later:

  I just got a call from John and he told me the attorney’s name so I looked him up on the Internet and got this information. Sure hope he is reputable and will do a good job for John.

  Seth had accepted the case with one caveat: that the Shon Hopwood who wrote the brief would stay involved with the case.

  Once again luck and the grace of good people had come my way. To be clear, Seth Waxman did not need my help. I doubt few attorneys with his pedigree would have taken input from a federal prisoner, let alone requested my contribution. Had John obtained a different attorney, there is little question that my involvement would have ended.

  In our first phone call, Seth was full of good things to say about the petition I had written. I was having a pinch me moment talking to a guy who had a lifetime of education and experience whereas I had none; I had yet to even earn an associate’s degree. Seth told me that I would be on the team with him and his associate, Noah Levine. I jotted down Noah’s number and we were set to go.

  For me, the trick would be persuading the Pekin staff to allow me to be involved in the case. You can obviously be in touch with your own lawyer and do your own research, and you can assist guys in the law library if you want, but this was something altogether different—a topflight attorney requesting assistance from a federal prisoner on another prisoner’s case. The test came soon.

  “This is a prepaid phone call from a federal prison,” the automated voice said. “To accept the call press five now; otherwise press one to block this call.”

  On the other end, Noah pressed five.

  “Hello, Noah, this is Shon Hopwood.”

  “Hi, Shon, it’s nice to meet you, even if it is over the phone,” he said. “So I guess the first question is how this will work. Any thoughts?”

  “Well, I don’t have access to a computer or computerized legal research. Plus I figure you guys have the legal issues covered. But I do know the record very well.”

  The record is all the lower court files, which included the trial transcripts, the transcripts from the suppression hearing, the docket statement, and all the pretrial motions and rulings.

  “Okay, so when we finish drafting the brief, we will send it to you and you can make notes in the margins about anything from the record you think should be included or any other questions you may have. When you’re done, send it back to us.”

  Once a Supreme Court case is granted, an entire new round of briefing occurs, arguing only the merits of the case, as opposed to why the Court should accept review, which is what I had done in the cert petition.

  Noah soon sent me a draft, but since John Fellers’ name was on the cover of the brief, the prison considered it another prisoner’s legal paperwork—off-limits to me. I argued that it was no different from my photocopying a case with another prisoner’s name on it from the law library, but reason and logic often have no place in prison.

  I went to Terri, the counselor, the wife of my boss. She was aware of what had happened with the Court; indeed, the entire prison knew about the case.

  “These guys are like the top lawyers in the country, and they are allowing me to be a part of the defense team.”

  “I get that, Shon. It’s very impressive.”

  “They are trying to send me a draft of a brief. They want my input,” I pleaded. “And sometimes there will be conference calls that they’ll want me in on, and they might call at times that don’t work with controlled moves. I don’t know if you can do anything about that for me.”

  “It might be a problem.”

  “You could think of it as a part of my education.”

  There was a silent moment as she thought about it. I could see she wanted to help but was wavering. Rules were rules.

  “Cornhuskers are supposed to help other huskers, you know,” I said. She was from Broken Bow, Nebraska—140 flat miles west of David City.

  Terri rigged things so that the coming flood of legal mail appeared as if it had come for my own case. The packages came directly to her, skipping the rule-heavy mailroom. She opened the envelopes—sometimes boxes—in front of me, searched for contraband, and then handed everything over. My cell and my work desk soon looked like a paper recycling center.

  Seth and Noah said they wanted to revise the questions I had presented in the cert petition. I asked if, legally, they could really do that, and then I realized they probably knew better than I that they could do that. Duh. Seth responded with a polite “I think so, Shon,” but not in a condescending way.

  So school was in session, and I was soaking up everything I could.

  “Noah, why do you always base legal arguments on things other than the Court’s precedents?”

  “Because, at this level, precedent can change in an instant,” he said. “It’s not enough to just say the Court should do it our way because of this case. We must show the Court that our way not only keeps with prior precedent but also is the better way of handling these types of issues.”

  “Okay, that makes sense.”

  “Shon, I have a question for you. What is a normal day like in there? You always seem so positive.”

  “There are no normal days in prison. There are lots and lots of boring days, but no normal ones. And if I sound positive, it is because there are things to look forward to when I get out of here.”

  I explained what those things were: my family and Annie, although I couched her in terms of a “good friend” rather than something else.

  Noah always took my calls and spent time explaining things. He never once asked me about my crime, which I found strange, but I appreciated it.

  He started telling me about his life, including his engagement to Lauren, a woman he had met during an internship at the Solicitor General’s office—where he had also met Seth.

  I honestly couldn’t comprehend why he and Seth were so generous to me. That there is a world of educated, smart, successful people out there who, in fact, are kind and generous was a revelation. I had stumbled into the crystal cave and had magical mentors. Any young attorney would dream of having such mentors, and I was far from being an attorney.

  Noah and I conducted a massive review of Miranda decisions, Fourth, Fifth, and Sixth Amendment cases going back half a decade. We had to have an answer for hypothetical questions that could be thrown at Seth; we had to coordinate with another set of attorneys on two related cases that the Court had also granted; we had to coordinate with the people who would be fili
ng amicus briefs supporting our side. Well, that was what Seth and Noah needed to do. I was just helping around the edges. At least, being where I was, I didn’t have to get the coffee.

  People around WilmerHale had a funny nickname for me: I was called “in-house counsel.”

  When the Fellers briefs were finished, Seth prepped for the oral argument. We would do some of that over the phone.

  “Terri, I need a big favor,” I said.

  She looked up from her desk like this must be the millionth favor.

  “The attorneys want me involved in a conference call. I don’t think I can make that work from the regular phones in the unit.”

  She squinted at me before rolling her eyes.

  “When, exactly, did I become your administrative assistant?” she asked.

  The call happened a week later in her office. Seth introduced me to the other attorneys on the phone. Most of the call covered details of the briefs, and I participated here and there. Then Seth asked me what questions I thought the justices might ask.

  I was dumbfounded that he would ask me that. He knew these people; I didn’t. But it was a law school moment. The professor was asking me to think fast on my feet.

  “Seth, really, I have no idea,” I said. I heard some chuckling in the background, then I started laughing. I would rather get a laugh like that than spout off about something I knew nothing about.

  Seth asked seriously if I could think of anything we hadn’t covered. I said I thought the first question, the one about eliciting information versus interrogation, was a no-brainer, but the second question, about the legitimacy of the second confession, still worried me. Everyone agreed. That would be the tough spot.

  Through his research Noah had concluded that Justice O’Connor would probably be the key vote on the second question; Noah had clerked for her back in 2000.

  Then that was it. Everyone wished Seth good luck. My participation in the case of John J. Fellers v. United States was presumably over—all but the waiting.

  It was an overcast morning in Washington, D.C., thirty-six degrees and breezy. A drizzling rain was on its way.

  I pictured Seth and Noah stepping out of a cab in front of the Supreme Court and walking up the forty-four marble steps.

  In the news that morning, Al Gore had announced he would not make another run for the presidency, and was throwing his support behind Governor Dean. Suicide bombers were killing people in Iraq and Moscow. The new premier of China was visiting the United States.

  I had an idea from talking to Noah how it would begin. He and Seth would be whisked in past the tourists on the north side. The clerk of the Supreme Court, William Suter—known around the Court as “the General” on account of his background as an Army lawyer—would meet Seth and Noah just inside and escort them to the lawyers’ lounge, which served as a sort of green room, where refreshments would be served and quill pens handed out.

  I had read all about the famous courtroom itself: it is small and elegant, with only a few rows of seats that resemble church pews. Everyone stands as the court marshal yells “Oyez, oyez, oyez” and plush red curtains open. The justices file in and take their seats behind the slight curve of the long dark wood bench. There are four marble columns behind the bench and the justices. A clock, not some symbol of justice, hangs oddly between the middle columns. It may as well be a stopwatch: one hour will be given to John Fellers’ future: thirty minutes for Seth to argue for his freedom and thirty minutes for the government to argue against it.

  I knew I was going to be fairly useless that day. Breakfast didn’t sound good at all, so I just worked out longer and ran the track continuously, trying to imagine exactly what was happening 700 miles to the east and forty-four marble steps up. I guess for as long as Seth was arguing the case, I was running. Toward the end of the scheduled hour, I wanted to be at my desk in Vincent’s office, which is not far from the phone in Terri’s office. I heard it ring a couple times, but Terri didn’t come running for me. The third time was the charm.

  Seth was on the phone. He had just hung up with John Fellers. Seth said he thought he had aced the first question. Mr. Michael Dreeben of the Soliciter General’s office had argued against our case. One of the justices had characterized Mr. Dreeben’s assertion that the first confession was not a violation of the Sixth Amendment as a “rather extreme position.” Seth had surely won that argument. He was unsure of the second, that the second confession was poisoned. Seth and Noah agreed that the second question would likely result in a 5–4 split, and how it would go was anybody’s guess.

  The legal knots that I had untied in my cell had now been untied in the minds of the Nine by Seth. Perhaps. The Court doesn’t just vote and that’s it; after oral arguments they work on the case, write opinions, write minority opinions, and it all takes months. We would have to hold our breath. But it sounded like it had gone very well.

  On a Monday in late January of 2004, I was writing in my cell when I heard my name called from the dayroom below. It was counselor Terri. I went to the balcony rail.

  “Shon, you have a phone call,” she said. I was unsure what it could be. Doomsday scenarios played out with my every step. Was I going to the hole for something? Had a family member died? Had someone told the cops they wanted to kill me? All I knew was that Terri rarely came into the unit to summon people for a phone call. I ran down the steps and walked across the unit with her.

  She led me to the center office. That was odd. I looked at her. She gave me a nudge and then smiled.

  “It’s your pal Seth Waxman on the line,” she said.

  “Shon, how are you?” Seth said.

  “Good. I take it a decision was handed down?”

  “On the first question: nine to nothing in our favor. The second question was remanded back to the Eighth Circuit. Justice O’Connor wrote the opinion.”

  “We won nine to zero?”

  “Yes, unanimously.”

  The Court’s decision meant that although John might not be going home immediately, his case was back on track, and he stood a decent chance of earning a retrial.

  We congratulated each other. Seth told me his firm would represent John at no cost in the Eighth Circuit, which would hear the issue of the second confession. He said that Noah would take the lead on that case, and I would be helping him if I was interested. Of course I was interested.

  I sent Annie a letter with the news. She was still in treatment at Mirasol. Lately our letters had been more sporadic, but I continued to worry about her. Sometimes when I was most up, she was most down and vice versa.

  Dearest Annie,

  When things seem tough and the days seem endless, remember there is someone praying for you and waiting for the day you get healthy. I’m impatiently waiting for the day when both our struggles are over, and we can see each other. Won’t that be a glorious day!! You healthy and me free!!

  Much love, Shon

  Two weeks after the big victory came a big scare. I called home for my weekly talk with Mom and Dad, and I could tell by Mom’s hesitation and lack of focus on the conversation that something was bothering her. I asked her what was up.

  “Your dad is having pain in his stomach and they found a mass of cells below his abdomen,” she said.

  “What’s that mean?” I asked.

  “Well … nothing at this point. They are going to operate on him in a week to see if they can figure out what it is. There is a good chance it is a benign tumor. Even if it’s cancer, there is a chance they can remove it surgically.”

  She handed the phone to Dad.

  “Don’t let your mother worry you, Son,” he said. “Whatever it is, they will get it out of me next week.”

  “But you’re going to be okay, right?”

  “Don’t worry. I love you.”

  When I left the phone I bumped into a big black guy as he grabbed the phone next to me—he was a new arrival. He had the largest set of arms I had ever seen. His name was Big Meeks.

  He came
from Chicago and was plugged in with the Gangster Disciples. Instead of just selling drugs, like most Chicago gangsters, his crew would steal them with the help of two Chicago cops. He would take the two police officers to a dope house, and together they would rob it. He had been convicted of interstate robbery and sentenced to forty years.

  What made him stand out in prison was his strength, even among guys who worked out all the time. He could bench-press over 500 pounds and rep 225 around forty times. Nobody could touch that. Guys would gather around the weight pile to watch him bench-press.

  With strength comes respect and Meeks had plenty. He was on the higher rung of the Gangster Disciple crew, Pekin’s largest gang.

  One day he approached me and I hoped it wasn’t to fight. I wouldn’t have taken him on with a baseball bat.

  “You the law man,” he said.

  “My name is Shon. And, yeah, sort of.”

  He had a few questions he hoped I could answer. I could and did. I later proofread a few letters he sent to law schools hoping to recruit help.

  One day he and I were in my cell discussing the merits of challenging his indictment, when I heard counselor Terri yell, “Hopwood, telephone call.”

  I went back in my cell to gather a pen and paper. John’s case was at the Eighth Circuit, and Noah was probably on the line about it.

  When we made it to the office, Terri said, “It’s your mother.”

  “They couldn’t get it all,” Mom said, crying. “They found a big tumor below his stomach.”

  “What is it?”

  “It’s cancer, lymphoma, wrapped around the big artery that goes to his lower half. They took what they could and closed him up.”