An Extraordinary Life in the Law: Frederick Bernays Wiener, Esq., 1014 RIBJ, 63 RI Bar J., No. 2, Pg. 29

Author:Robert Ellis Smith, Esq. Providence.
 
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An Extraordinary Life in the Law: Frederick Bernays Wiener, Esq.

Vol. 63 No. 2 Pg. 29

Rhode Island Bar Journal

October, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 September, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Robert Ellis Smith, Esq. Providence.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A notable lawyer who practiced in Rhode Island is the subject of a classic legal trivia question: "Who is the only lawyer to have argued and lost a case before the U.S. Supreme Court and then persuaded the court to reconsider the case and reverse itself so that he won the case?" He is Frederick Bernays Wiener, a noted military-justice lawyer who argued in the case of Reid v. Covert, [1] in 1956, that the Bill of Rights ought to protect an American citizen even on foreign soil. Five weeks later, by a 5-4 vote, the United States Supreme Court rejected his plea. In so doing, the Court's majority said that the U.S. Air Force could properly prosecute and convict Clarice Covert, a civilian spouse who, in 1953 on an air base in England, killed her husband, an Air Force sergeant. According to the Supreme Court, she was not entitled to the constitutional protections of due process including trial by jury, even though she was an American citizen.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Wiener argued forcefully for a rehearing. His task was to persuade at least one member of the majority when the Court announced its original opinion. He already had the dissenters on his side, Justice Hugo L. Black, who wrote a dissent in the original case; Chief Justice Earl Warren, and Justice William O. Douglas, and, probably, Felix Frankfurter, who in an extraordinary "reservation, " had chosen not to express an opinion in the case because he wanted more time for "adequate study." Wiener had argued regularly in front of each of them.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The presentation by Wiener, according to Oyez, the Web site of the Chicago-Kent College of Law, "has attained legendary status and remains a preeminent exemplar in the art of persuasion and appellate advocacy."[2] On November 5, 1956, the Court broke precedent and granted the petition. It heard rearguments the following February.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One day short of a full year after its original denial of Wiener's case, the Court reversed itself and ruled for him and his client. Justice William J. Brennan, who had joined the Court in the interim, made the difference. He joined the four...

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