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The U.S. Supreme Court ruling that may have the broadest impact this year was on few radar screens before it was announced June 24: Blakely v. Washington, which could upend federal and state sentencing laws nationwide. The ruling built on the 2000 decision in Apprendi v. New Jersey and means that any fact that increases a sentence — even an aggravating factor within a statutory maximum — must be proved to a jury, not decided by a judge. The lawyer who won the case was also a mostly unknown quantity: Jeffrey Fisher, a 33-year-old, fifth-year associate at Davis Wright Tremaine in Seattle. Soon after the decision came down, Fisher was fielding calls from lawyers around the country. Many reported that the decision was being invoked by U.S. district judges to sharply reduce federal sentences, even though the decision explicitly states it was not ruling on the federal guidelines. According to Barry Scheck, president-elect of the National Association of Criminal Defense Lawyers, the decision “spells the end of sentencing guidelines as we know them.” Federal judges in Utah, Maine, and Washington, D.C., cited the decision less than a month after it was issued. Fisher is still reeling from the decision and its immediate impact. “I knew going in that if I won, Blakely would apply to at least a dozen or so states, and potentially many more,” he says. “I also thought the federal guidelines would then be the next case, but I didn’t expect that issue to become so pressing, so immediately.” Fisher adds, “Given the way this is going, I’m starting to think that the Justice Department is going to ask the Supreme Court to take one of these cases on an emergency basis. It seems like everyone just needs to know one way or the other.” At press time in July, speculation had already begun about a special Court session later in the summer if the trend toward striking down federal sentences snowballed (see “Supreme Chaos,” page 73). Fisher scouted out the Blakely case by perusing Washington state appellate rulings for the NACDL. He also spotted a different case that turned into another sleeper high court victory this term, Crawford v. Washington. Using skills he learned as a clerk to Justice John Paul Stevens five years ago, Fisher fashioned petitions to the high court and, much to his surprise, got both granted. In his Supreme Court debut, Fisher argued both cases ably, though in Blakely he committed the same misstep that has befallen some of the most experienced Supreme Court advocates. Answering a question from Justice Ruth Bader Ginsburg, Fisher addressed her as “Justice O’Connor.” From the other end of the bench, O’Connor helpfully chimed in, “That’s Justice Ginsburg down there.” The March 8 Crawford ruling invoked the Sixth Amendment’s confrontation clause to forbid the use at trial of statements made to police by witnesses who cannot be cross-examined. In the long run, Fisher thinks Crawford, which may upset long-standing hearsay statutes and evidence rules, will be more important than Blakely. “Some criminal defense lawyers even have told me they think that it’s the biggest thing since Miranda, though that’s quite a mouthful.” The wins were all the more remarkable because both decisions were authored by Justice Antonin Scalia, not usually a reliable vote for NACDL causes. Fisher hopes to argue again at the high court, though he has nothing in the pipeline — yet. A version of this story originally appeared in Legal Times, a sibling publication of Corporate Counsel.

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