In May 2001, William Johnson was convicted in Illinois state court of armed robbery, aggravated battery, and unlawful use of a weapon.  At trial, Mr. Johnson took the stand on his own behalf and testified that his cousin--who matched early descriptions of the offender but who, despite being in custody, was not placed in a police lineup on the night of the offense--was the guilty party.  On cross-examination, over repeatedly sustained objections, the prosecutor asked Mr. Johnson twenty-five times why he failed to tell his story after he was arrested and advised of his Miranda rights.  During closing argument, the prosecutor returned to this theme, urging the jury not to believe Mr. Johnson's defense because Mr. Johnson had failed to tell it upon arrest.

Mr. Johnson appealed his conviction to the Illinois Appellate Court, arguing that the prosecutor's comments violated the rule that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.”Doyle v. Ohio, 426 U.S. 610, 619 (1976).  The Illinois Appellate Court agreed that the prosecutor violated Doyle, but held that the violation was harmless.  Mr. Johnson then sought habeas relief in the U.S. District Court for the Northern District of Illinois.  The district court granted Mr. Johnson's habeas petition, and Illinois appealed.

Mayer Brown accepted the Seventh Circuit's appointment to defend the district court's judgment on appeal.  Mr. Johnson's brief emphasized the knowing, deliberate, and repeated nature of the constitutional violations at his trial, as well as the holes in the prosecution's case.  Chief Judge Easterbrook and Circuit Judges Cudahy and Sykes heard oral argument on September 3, 2008.  The argument focused on whether a constitutional violation took place and largely set to a side the question whether any violation was harmless.