Sam's Hour of Glory?and Agony

As one attorney finds, a Supreme Court debut is a trial

Though lawyers are forever vowing to go "all the way to the Supreme Court, "few get there, if only because the Justices take just about 150 cases a year. Understandably, attorneys making their debut before the high bench hope to shine in the hour or so of "oral argument" allotted for a case. But the experience can be humbling, especially for lawyers whose world is largely one of poor clients and local courts.

One such newcomer was Salvatore Cucinotta, a Philadelphia lawyer who describes his specialty as "personal injury work--not basic rear-enders, but serious stuff, like burns and sexual assault cases." His ticket to Washington: U.S. vs. Morrison, in which Cucinotta urged the court to approve dismissal of drug charges against his client, Hazel Morrison, on the ground that federal narcotics agents had interfered with her right to counsel. Cucinotta argued the case in December, and it was decided last week. TIME Correspondent Evan Thomas followed the attorney's judicial odyssey to the end. His report:

It is a slow day in June, and Salvatore ("Sam") Cucinotta is sitting in his windowless office shuffling papers when the phone rings. The Supreme Court is calling. As he tells it now, "I jumped up and stood at attention." It is big news: the court has agreed to hear U.S. vs. Morrison.

Cucinotta, 35, has never seen the Supreme Court. His turf is Philadelphia's criminal courts; his forte is plea bargaining with prosecutors, not constitutional advocacy. But in a few months, he will be in the high bench's marble temple in Washington to argue an important case involving the right to counsel.

Cucinotta calls Morrison "Hazel's case," but it is his too. Charged with selling heroin, Hazel Morrison, a black woman of 35, hired Cucinotta to represent her for $200. But before he could, two federal Drug Enforcement Administration agents went to Morrison's home. They were blunt: "Your lawyer is going to make an ass out of himself, and you too," said one. Get rid of Cucinotta, they urged, and help the DEA finger a bigger pusher in return for leniency. If she refused, they said, she could expect a "stiff sentence" from the judge, who "hates black people."

Morrison refused and called Cucinotta. He stormed off to court. The agents had so grossly violated Hazel's right to counsel, he argued, that the charges should be dropped. At first the agents denied any wrongdoing. But Cucinotta tricked them. On a table he placed two tape cassettes marked with the name of one of the agents. Thinking--wrongly--that Cucinotta had taped their talk with Hazel, the agents grudgingly told the truth.

The prosecutor and judge were furious and threatened Cucinotta with contempt and criminal charges for wiretapping. Finally Cucinotta persuaded them that the tapes contained nothing. Hazel was convicted and sentenced to five years.

To Cucinotta's surprise, his appeal succeeded: the charges against Morrison were thrown out, on grounds that her right to counsel had indeed been violated. Since the remedy was unusual and drastic, the Supreme Court decided to review the case. This meant that Cucinotta would be defending not just Hazel Morrison but also a key principle: the sanctity of the attorney-client relationship.

Sam's first step after hearing from the Supreme Court is to write a brief urging it to uphold the appeals court's decision. He searches for precedents supporting his case, but finds few; his 45-page brief tells how the DEA and the prosecutor tried to pressure Morrison and him. The Government has also filed a brief, which Cucinotta studies before writing his. He scribbles indignant notes in the margins. To the Government's claim that it can control its agents without court interference, Cucinotta quips, "Like Herbert Hoover?" (He means J. Edgar Hoover, the late FBI director.) He reads The Brethren, the book on the high court's inner workings.

Three days before his oral argument, Cucinotta is in the kitchen of his suburban home, stirring spaghetti sauce and expounding on the U.S.'s adversary system of justice. "People like me are the champions of liberty," he says. "Think if I lose. Does it mean that the Government can willy-nilly threaten harsher sanctions if a defendant doesn't drop the attorney of her choice? Think of the Spanish Inquisition! Or the Tower of London! Not everybody in there was guilty. Or the Willingboro Ten!" His wife Santa gently corrects him: "It's the Wilmington Ten, Sam."

He truly believes his cause is to help save the adversary system. The son of a Sicilian-born father, who is a doctor, and an Irish-American mother, Cucinotta keeps little American flags around the house. After learning that the Supreme Court would hear his case, he went to Washington to look at the court building. "I was moved. I kissed the steps," he says. "Well, not really." He kisses his hand and slaps the kitchen stove. "Like that."

The next day Cucinotta returns to Washington to practice his oral argument before lawyers from the National Legal Aid and Defender Association. Firing the kind of probing questions that the Justices are sure to ask, the N.L.A.D.A. coaches blow holes in Cucinotta's platitudes. "Grand gestures about the adversary system," says one. "But I didn't hear your points. You were too cosmic." Cucinotta looks deflated. He has been awake since 2:30 a.m. thinking about his argument. "My head is spinning," he says.

Over the next 48 hours, Cucinotta rebuilds his confidence as he reworks his argument. An hour before the big moment finds him munching an apple in the court's lobby. He has shaved his mustache and put on a dark blue suit, and by now he is flying. "Equal justice under the law!" he exclaims, waving the apple at the frieze on the ceiling. "Equal justice!"

At 1 p.m. the bailiff cries "Oyez, oyez!" and the black-robed Justices file onto the bench. The Government goes first, and its lawyer pounces on a flaw in Cucinotta's case. The DEA agents were "wrong" to try to interfere with the attorney-client relationship, concedes the Justice Department attorney, Peter Buscemi. But the point is that they failed. Morrison ignored the agents, and Cucinotta represented her at trial. The defendant was not hurt, so there is no reason to dismiss the charges. The Justices ask some questions but do not dispute this reasoning. Buscemi sits down looking satisfied.

Cucinotta rises to his full 6 ft. 3 in. and responds: "Mr. Chief Justice, members of this court. I am Salvatore Cucinotta, and I am counsel for the defense. I'm here representing not only Hazel, but the adversary system. If those DEA agents had been successful, I wouldn't be here. There would be no adversary system." Cucinotta speaks forcefully, but the Justices come right back to the case's particulars.

Thurgood Marshall asks: "Were you stopped from doing anything you wanted to do at trial?" Cucinotta is taken aback. "I can't speculate," he says. "Well, try," says Marshall. "Try to find something you were denied from doing." Marshall is the most liberal Justice, the one most likely to side with Cucinotta. He practically begs for an answer: "Now what?" Cucinotta cites the contempt of court threat from the judge. Marshall responds: "You look like a man who's not easily intimidated. I'm not wrong, am I?" "No, your honor," comes the answer. There is laughter in the room, but Cucinotta has missed his chance. He tries at the end to point out that Hazel's sentence was harsh, and that she will never know if she would have done better to cooperate with the DEA. The Justices seem unimpressed.

The argument has not gone well. "A disaster," says one of the N.L.A.D.A. lawyers. "Let's go cry in our beer," says Cucinotta, as he heads for a local bar. "I think I may have lost." He regrets the exchange with Marshall. "He was trying to pull teeth, and I wasn't answering his questions." Someone tries to console him: "It's a great honor to argue in the Supreme Court." Cucinotta will not be cheered. "But I came here to win," he says.

He loses. In the six-page opinion handed down last week, the court ruled by a 9-to-0 vote that the case had not been prejudiced by the DEA agents, and the charges should not be dropped. The case is sent back to the lower court, where Morrison's sentence will almost surely be reinstated. Laments Cucinotta: "It's too bad for Hazel; it's too bad for all of us. But," he sighs, "I'm still a Philadelphia lawyer, fighting for people's rights." qed

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