As opposed to my last visit for oral argument, I was the final argument of the morning. I had the privilege of watching three other arguments before it was my turn. I saw numerous, experienced orators become befuddled by the intense questioning of Judge Loken. He certainly takes oral argument seriously and makes sure his position on your argument is known immediately. Numerous advocates were told quickly that they were advancing a position he was not inclined to agree with. I was no exception.
Judge Loken stated that he would not assume the Arkansas Supreme Court only accepted review on Eastin’s direct appeal because of the preservation issue. Instead, he claimed that was an enormous assumption. He went so far as to claim he was prevented from even addressing the issue, although I believe in his own questioning he talked himself out of that position.
In the end, I emphatically argued that it was a far greater assumption to believe there were other grounds for review and the Arkansas Supreme Court would have taken the case up on review for another reason. I think my biggest problem with the entire argument is that this issue had NEVER been brought up by any other court nor had the State ever argued that the Supreme Court would have still granted review on another issue. It’s always fun to have the judge’s play for the State as well as if the deck wasn’t stacked against you enough.