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I am surprised that Tony Mauro stated in his article, “Supreme Court Case Disappears During Oral Arguments”, that I was unavailable for comment following the argument in the United States Supreme Court in the case of Shaw v. Murphy. After all, we were in the same room. Mauro finds it curious that I would concede the question, which was crafted by the petitioner, not by me, of whether a prisoner enjoyed “an independent, free-standing right to give legal advice.” The tactic of stating the question so that one answer to the question is untenable, is not a new one. The affirmative answer to the question would have been untenable, which is why I conceded it. Mauro forgets that I represented the respondent in the case. We had won in the 9th Circuit. To defend the undefendable was to offer the Court the opportunity to reverse the 9th Circuit, throwing my client out of court altogether. The Court, after all, did not grant cert because they wanted to fall all over themselves giving a convicted felon a new right. Two outcomes were wins for my client: affirming the 9th Circuit’s judgment or vacating the judgment and remanding. By declining the invitation to fight a battle on ground chosen by my opponents we increased the odds of a favorable outcome. In the end, Mauro’s article reflects something we should all remember. If you are going to Monday-morning quarterback, you should occasionally touch the ball. Jeffrey T. Renz University of Montana School of Law Missoula, Mont.

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