By Andrew Warthen
Assistant Criminal District Attorney in Bexar County
When TDCAA first approached me about writing on my experience arguing before the United States Supreme Court, I was trepidatious. See, the road to the Supreme Court and back is no small journey. While it was a great honor and career highlight, reliving the rather arduous experience was not high on my to-do list. Then again, how often does a local prosecutor get to represent his home and neighbors before the highest court in the land? That’s not a rhetorical question. In an era of Supreme Court specialists, the answer is, “Not often.” Its rarity alone is worth a few words. And if the tale is to be told, I should be the one to tell it. So please, gather round as I spin the yarn of my (let’s hope) once-in-a-lifetime adventure.[1]
The ordinary world
On October 16, 2015, David Asa Villarreal stabbed Aaron Estrada, his boyfriend, multiple times with multiple objects. The killing was the culmination of a days-long, meth-induced rampage, spurred on by Villarreal’s bizarre paranoid delusions.[2] His trial began in 2018, where he took the stand and claimed self-defense. During his testimony, the trial broke for an overnight recess. It was then that the judge instructed Villarreal’s attorneys to not “manage” his testimony during the break. Importantly, however, he made clear that they could otherwise confer. The attorneys lodged an objection under the Sixth Amendment’s right to counsel but otherwise stated they understood the order’s parameters. The next day, Villarreal finished his testimony. He was ultimately found guilty and sentenced to 60 years in prison.
In 2019, I picked up Villarreal’s court-of-appeals brief.[3] Written by Edward Shaughnessy, a seasoned appellate attorney, it seemed simple enough at first glance. But I soon realized there was a clear split of authority across the country on whether trial judges could issue “qualified conferral orders”—that is, orders restricting conferral about the defendant’s ongoing testimony but otherwise allowing client and counsel to discuss the case.
Surprisingly, no Texas court had addressed the issue. But every federal circuit court to address it (and some state supreme courts) disapproved of such orders, whereas several state high courts found no constitutional violation. The latter, however, was the minority view. I argued that the court of appeals should side with the minority, but I also made a robust harmless-error argument. Ultimately, over a vigorous dissent, the court of appeals found no constitutional violation.[4]
Villarreal petitioned the Court of Criminal Appeals (CCA), which took the case. In an opinion by Judge Richardson, the CCA agreed that there was no constitutional violation. Judge Keel believed there was, but she concluded it was harmless. Judge Walker dissented, believing that the order violated the Sixth Amendment and was structural error.[5]
A call to adventure
Indicating the closeness of the issue, the CCA took some time to decide the case. So, when its opinion came down, I was relieved to have won, to put it mildly. I had a bad feeling, though, that more was to come.
And so it did. The non-prevailing party has 90 days to petition the Supreme Court of the United States to hear its case. Villarreal took just over 30. He was now represented by Stuart Banner, a former Supreme Court clerk, an experienced Supreme Court advocate, and head of UCLA Law School’s Supreme Court clinic. Indeed, Professor Banner literally wrote the book on the Supreme Court.[6]
Pitted against such a worthy opponent, I did what any intrepid attorney eager for the ultimate challenge would: I filed a response waiver. Not long after, however, the Court instructed me to respond to Villarreal’s petition. Resolute, I got to work on a motion for extension.
Crossing the first threshold
In Bexar County, there’s a tradition of our appellate attorneys seeing their cases through to the very end—including, if necessary, to the Supreme Court. So it was up to me to finish the job. But that doesn’t mean I was alone. My colleagues in the Appellate Division were of great assistance in talking through the issues, reviewing my filings, and conducting a moot court. They also picked up my slack in our division’s other duties, as almost all my attention was focused on this one case. I further received advice and insights from the attorneys at the State Prosecuting Attorney’s Office.
Luckily, too, I have always been a Supreme Court nerd. I read SCOTUSblog and other legal blogs every day, listen to several Court-related podcasts, and otherwise keep up with the Court’s goings-on—reading all the opinions, orders, opinions related to orders, etc. I even frequently listen to oral arguments … for fun! Because of this, I have developed a sense of the individual Justices’ personalities and predilections.
In February 2025, I filed my response—formally called a “brief in opposition”—to Villarreal’s petition for certiorari. I had no choice but to acknowledge the split of authority on the Sixth Amendment issue around the country, and resolving such constitutional splits is the main reason the Court grants petitions. Despite that, I tried to convince the Court that the case was not worth taking. I failed in that endeavor, and in April 2025, Villarreal’s petition was granted.
Meeting with the mentor
How does one even go about filing an effective brief in opposition or merits brief in the Supreme Court? This is exceedingly uncommon, especially for local prosecutors. Fortunately, there are some resources.
First is the National Association of Attorneys General (NAAG), which, among other things, is dedicated to helping state and local prosecutors argue at the Supreme Court. NAAG’s own Dan Schweitzer has several easy-to-read guides for filing cert petitions and briefs in opposition. He was also instrumental in setting up my final moot court and arranging an amicus brief in support of our position (more on those below).
Next there are the books that offer in-depth instruction on how to effectively prepare and argue at the Supreme Court. I re-read Making Your Case: The Art of Persuading Judges by Bryan Garner and the late Justice Antonin Scalia, which is short, pithy, and required reading for any appellate advocate. David Frederick’s Supreme Court and Appellate Advocacy was both engaging and full of must-have information for anyone preparing to argue at the Court. And Supreme Court Practice by Stephen Shapiro, et al., is thick but insightful. The first two I read front to back and the third as needed. All these books, it should be noted, are recommended by the Court itself in its Guide for Counsel in Cases to Be Argued. So, yeah, they’re probably at least worth looking through.
Finally, if you want to do well, learn from the best, and in the world of Supreme Court advocacy there’s none better than the U.S. Solicitor General’s Office. It posts all its briefs online, and I read many to get a sense of great advocacy. That’s not to say I sacrificed my own voice or style. But arguing at the Court is all its attorneys do, and they’re prosecutors to boot. So learning from them could only give me a leg up.
Tests and allies
Statistically, when a petition is granted by the Court, it means the respondent is going to lose because, by about a 2-to-1 margin, the Court reverses. Therefore, gaining allies is key.
The best ally one can have? You guessed it, the U.S. Solicitor General’s Office. Attorneys there have the ear and confidence of the Court, and as stated above, all they do is argue before it. In short, they are the ultimate specialists, and as a result, they are staffed by some of the top attorneys in the country. I contacted the office and they paired me with Assistant S.G. Kevin Barber, whose insights and preparation were instrumental in helping me develop my strategy. Kevin filed an amicus on behalf of the United States in support of our position and argued for the United States at the Court.[7]
In addition, the state of Ohio filed an amicus brief on behalf of itself and many other states. Such amici from state governments are highly influential with the Court, and having their support showed solidarity amongst the state governments. It was especially helpful because Villarreal had amassed several amici to flank his position.
Finally, there were the moot courts. In preparation for the moots and actual arguments, I decided to utilize AI. AI has gotten a bad rap, and for good reason. People use it to do their work rather than as a tool to enhance their work. But I had heard some top Supreme Court advocates were using it to formulate questions the Justices might ask and were getting some surprisingly effective results. None other than Justice Amy Barrett
confirmed this to be true.[8] So I asked ChatGPT to review the case and give as many questions as possible from the perspective of each Justice. By and large it was very helpful, formulating hundreds of potential questions. But the key here is that I already knew the case inside and out. As a result, I knew if AI was asking a nonsense question. The takeaway: AI is good for assisting your work, not doing work for you—a lesson too many attorneys, sadly, have not learned.
Some people do a lot of moot courts. One defense attorney who argued at the Court several years ago told me he did more than 10. In my opinion, that’s excessive. I was aiming for up to five and ended up doing three. The first was in-house with my appellate colleagues and some attorneys from our Civil Division. They asked very engaging questions but were not too hard on me, making it an invigorating warm-up. That was about a month and a half before the big showdown. I was expecting to do another moot about three to four weeks out with an outside group, but unfortunately it fell through.
The last two were the week before the argument. I didn’t want them to be too close to the actual argument day because I needed time to absorb the feedback and recommendations from the moot judges. So I booked them for the Tuesday and Wednesday before the argument, which was to take place the following Monday, October 6, 2025.[9]
The Tuesday moot was arranged by my law school alma mater, the Catholic University of America’s Columbus School of Law. Professor Mary Graw arranged a group of Washington-area attorneys of various experiences, including Professor Mark Rienzi, who had argued at the Court. Unlike the actual argument, moots typically go on for well over an hour and are grueling experiences. This was no different, but it was invaluable. They gave me a lot to think about, but they were also quite encouraging. It was also nice to speak with the student observers afterwards.
The next day was the moot with NAAG. This is one of the main services NAAG provides, and the coterie of veteran attorneys Dan Schweitzer assembled was ruthless—exactly as they should have been. I’ve never been under such intense scrutiny as every aspect of my position was explored, dissected, and sometimes outright ridiculed. But it was all in the name of breaking me down so that the actual argument would seem like a cakewalk by comparison. Afterwards, the judges were again complementary, and if I do say so myself, I held my own pretty well. But I also walked away knowing there were several parts of my argument in need of fortification. The rest of the week was spent doing exactly that.
The next day, I attended one of Kevin Barber’s (the Assistant Solicitor General) moot courts at the Department of Justice (DOJ) . While I was only an observer, that too was very insightful, and I thank the DOJ for allowing me to peer behind the scenes.
It’s also important to remember that while you are wrangling amici, arranging moot courts, and reading up on how to effectively advocate, you’re also having to write the merits brief. That’s no small task. While all the drama is focused on the oral arguments, probably 90 percent of the argument is in the brief. Many Justices have lamented that advocates often spend too much time preparing for the oral arguments while neglecting the brief. Thus, it is imperative that you develop strong arguments, have them reviewed by other attorneys, and know them backwards and forwards when oral arguments begin. In my brief, I tried to highlight several jurisprudential areas that would appeal to as many Justices as possible—adherence to precedent, practical considerations, the Sixth Amendment’s original public meaning, and respect for trial-court discretion and local custom. In doing so, I maximized my chance at capturing as many votes as possible.
Moreover, in most cases—including mine—the Court requires all briefs to be filed in booklet form with exact specifications regarding size, font, cover color, etc. And each brief requires 40 booklets. Because the booklets must be exact, you are essentially forced to hire a printer that specializes in Court filings. They are not cheap. Even the most reasonably priced firm costs thousands of dollars. And finding a printer and communicating with them to make sure your brief is timely is just another thing you must juggle when preparing the case.
With the brief filed, the amici lined up, and the moot courts completed, the stage was set for the final showdown.
The inmost cave
There’s a moment for any warrior when everything around him falls away. He has prepared as much as he can—endured all the tests, learned all the skills, and honed his craft. No one can help him now. The task is his alone. He must approach his destiny with nothing but his sword, shield, cunning, and wit. He approaches the threshold of the cave—that layer which has haunted his dreams and become his nightmare. He presents himself before the sentries who stand guard, permitting to pass only those whose fates allow it. He enters resolute, ready, resolved … and then his back goes out.
That’s what happened to me, at least. I got to the Court as soon as we could enter. After I went through security, I bent slightly to pick up my case binder and it struck like lightning, a feeling I knew all too well after years of back problems. As is often the case with such strikes, though in pain, I was still able to walk for a bit. I was escorted to the Lawyer’s Lounge, the staging area for everyone about to argue. But as time went on it became harder and harder to stand. I sat down to relieve the pain but was unable to stand back up. Again, this had happened to me before, but I never thought it would happen that day of all days.
Fortunately, Edward Shaughnessy was also there early, and he contacted the Marshal’s Office. They, in turn, secured me a wheelchair, had one of the on-staff nurses check on me and help move me around, and set up a microphone in the courtroom so that I didn’t have to stand at the lectern. I was in pain, but I wasn’t going to let some minor thing like nonfunctioning back muscles stop me. I certainly didn’t want to reschedule. I was ready to slay this beast or die trying.[10]
The ordeal
Despite my infirmity, I was ready to go, and the nurse wheeled me into the courtroom. The courtroom itself is spectacular, but much more intimate than one might expect. The Justices themselves are quite literally an arm’s-length away. Waiting for you at the table are real quill feathers, which are your one-of-a-kind keepsake for arguing at the highest court in the land.
But the most important thing in the courtroom that day was the support of several family members, friends, and colleagues who traveled to attend the argument, not the least of whom were Bexar County District Attorney Joe Gonzales and my wife, Leticia. I also knew that back home some friends, family, and Appellate Division colleagues who couldn’t make it to Washington were listening to the livestream. Having an audience of intimates is both calming and stressful, but I’m forever grateful for their backing (pun intended).
Professor Banner opened and made a spirited argument, but I was immediately struck by how the Justices seemed skeptical of his position. I did not expect that. I was fully prepared for any hostility to be directed towards the State’s position. After all, we proposed a nuanced rule, while the Court usually prefers bright lines. Moreover, our rule would permit trial judges to place limits on attorney–client conferral, generally one of the bedrock protections of our criminal-justice system.
In modern times, counsel is permitted two uninterrupted minutes to give an opening address. When my turn came, as the respondent I had to decide whether to give the opening I had practiced over and over and over—and over—again for the last three months, or to directly respond to Professor Banner’s arguments. I chose the former because, one, it would put me at ease to say what I had practiced for so long, and two, it was a succinct summary of my overall argument, which I wanted to put in the Justices’ minds right off the bat.
The questions thereafter were tough but fair, and nothing I hadn’t anticipated. The moot courts had been far rougher than the tone the Justices presented, which means the moots worked exactly as designed. The trick was to just pay attention, calmly answer the question posed, ask for clarification if needed, and not dwell on an answer. Remember, the brief is the bulk of your argument. During oral argument, you just want to hit the highlights from the brief the best you can.
The time passes quickly. Because the United States was also arguing on our side, my set time was cut from 30 minutes to 20—which was fine with me because I wanted to strike the right blows and head for the exit. This phase of the argument can sometimes get very erratic as many Justices ask heated questions at the same time, with the advocate not always able to give a full answer. Luckily for me, that did not happen here. The questioning was very orderly, and I was always able to give a complete response.
After your set time is done, the Court goes into the “seriatim round,” i.e., a Justice-by-Justice phase where no Justice can interrupt another. This too passed quickly. After I was done, Kevin Barber gave his argument for the United States, and Professor Banner made his rebuttal. Then, just as quickly as it began, it was done. Months of stress and preparation put to rest. With the help of the nurse, I emerged from the cave—less mobile than when I entered, but still alive.
The road back and resurrection
Unfortunately, the celebrations I had planned for the rest of the day fell through. Because of my injury, I spent the remainder of the day either at a clinic or bedridden. Between that, the argument, and the past year of anticipation and preparation, I was emotionally spent. Fortunately, my friends and family who had traveled to Washington cared for me—at times, literally lifting me up—and made sure the trip home was achieved with as little pain as possible.
Over the following weeks, I saw specialists for my back, and it slowly recovered. District Attorney Gonzales and the other members of my office recognized my efforts and lifted my mood. I cannot emphasize enough how inspiriting it was to have the support of my entire office both before and after the argument. Other friends, family, and former colleagues reached out, too, offering kind words and congratulations. All there was to do now was wait for the results.
Return with the elixir
When you’re waiting for an opinion from the Supreme Court, time slows down considerably. From argument to hand down, it was under five months, but it felt like five years. On opinion-release days, I tried to play it cool but was racked with anticipation. The Court’s website releases each opinion one by one every five to 10 minutes, periods that stretched out to eternity. The webpage does not update automatically, so you’re forced to hit refresh again and again until the day’s last case populates. The longer my case took to be released, the more I became convinced that I had lost, meaning the case I had started almost seven years earlier would drag on, subject to more rounds of arguments in the Texas courts over structural error and harm.
Finally, on February 25, 2026—almost 101⁄2 years after Villarreal fatally stabbed his victim—the Court released its opinion, which was unanimous in the result. Justice Jackson, writing for herself and seven other members of the Court, agreed with the State that qualified conferral orders, such as the one given here, do not violate the Sixth Amendment’s right to counsel even during long recesses in the defendant’s testimony. While defendants have the right to confer with counsel about a great many things during that time—e.g., whether to seek a plea bargain, the existence of other witnesses—counsel can be prohibited from managing or otherwise discussing the defendant’s testimony with him for its own sake. Counsel, however, can discuss the testimony if it is incidental to a protected area—e.g., if the defendant has a question about an evidentiary ruling that took place during his testimony—but only to the extent necessary to answer the question and without prohibited management.[11]
Justice Alito joined the majority but wrote separately “to set out the framework under which courts should analyze limitations on communications between a criminal defendant and his attorney during a break in the defendant’s testimony.”[12] Justice Thomas, joined by Justice Gorsuch, also concurred but would have gone further and held that trial courts can prohibit all discussions of the ongoing testimony regardless of whether it is incidental to a protected area.[13]
As before, congratulations poured in from excited friends, family, and colleagues. With a victory in hand, my Supreme Court journey was at an end. I was, of course, happy. But more than anything, I was just glad it was finally over.
Epilogue
The morning the opinion came down, the case’s trial prosecutor, Ana Ochoa Nelson, stopped by my office. She asked if I was ready to call “Grandpa”—that is, Tom McClellan, the victim’s grandfather—to give him the news. He was glad and relieved, and he thanked us for our efforts. The call was short but sweet.
After years of knowing the facts backwards and forwards, writing the briefs, diving into Sixth Amendment history, learning the intricacies of arguing at the Court, organizing moots, anticipating Justices’ questions, and researching the issue from every angle—among many other tasks—speaking with Grandpa reminded me why prosecutors do what we do: to see that justice is done for those who can’t do it for themselves. His gratitude was the real reward at the end of the journey—better than any accolades or quill feathers, and well worth a little pain in the back.
[1] Hat tip to Joseph Campbell’s The Hero’s Journey, which provides the structure of this article.
[2] For a much fuller summary of Villarreal’s rather wild exploits, feel free to read pages 1–8 of my merits brief in the Supreme Court, which is available on the TDCAA website; just look for this story in the Journal section.
[3] In Bexar County, we have a dedicated team of appellate attorneys who do not need to be assigned cases by a superior. Instead, we take briefs as our workload permits and, with rare exceptions, in the order they are due. In other words, my handling of this appeal was random chance, not because I was seen as the “best lawyer for the job.” Any one of my colleagues would have knocked it out of the park if they grabbed it instead.
[4] Villarreal v. State, 596 S.W.3d 338 (Tex. App.—San Antonio 2019).
[5] Villarreal v. State, 707 S.W.3d 138 (Tex. Crim. App. 2024).
[6] Stuart Banner, The Most Powerful Court in the World: A History of the Supreme Court of the United States (2024).
[7] The S.G.’s Office, of course, could have disagreed with us and not helped. It could have also stayed neutral and opted to not get involved (unless the Court itself requested a response from the S.G.). But, from when I first contacted the office, people there were more than happy to help and were on our side, which was a great relief.
[8] Maia Spoto, AI Has Predicted Supreme Court Justices’ Questions, Barrett Says, Bloomberg Law (Sept. 9, 2025), https://news.bloomberglaw.com/litigation/ai-has-predicted-supreme-court-justices-questions-barrett-says.
[9] Our argument, it should be noted, was the first of the term. So I wasn’t going to have the benefit of attending an argument before mine—always a good idea if you can do it. Luckily, because I attended law school in D.C., I had been to some arguments in the past and had streamed the audio of many oral arguments over the years.
[10] Interesting fact: I was apparently the first advocate in over 20 years to argue in a wheelchair. The last to do so was none other than then-Texas Attorney General (now Governor) Greg Abbott. See Mark Walsh, The Court Opens for Business Despite a Federal Shutdown, SCOTUSblog, www.scotusblog.com/2025/10/the-court-opens-for-business-despite-a-federal-shutdown.
[11] Villarreal v. Texas, 146 S. Ct. 756 (2026).
[12] Id. at 768.
[13] Id. at 770. This aligned with the bright-line rule advocated by the Solicitor General’s Office, in contrast to the State’s more nuanced approach.