A 34-year-old associate at a Seattle law firm rocked the worlds of criminal procedure and sentencing when the U.S. Supreme court ruled in his clients’ favor in two cases this year.
The aftershocks of Blakely and Crawford, as the cases are known, won’t stop anytime soon. So it’s not shocking that Jeffrey L. Fisher was chosen by The National Law Journal as runner-up for Lawyer of the Year.
Though a Supreme Court rookie, he was no stranger to the intricacies of the high court. He clerked for Supreme Court Justice John Paul Stevens five years ago, after a clerkship for 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt.
“He was a great law clerk, he really was, and a fine young man,” Stevens said. “I thought he would have a successful law career.”
Compared to most, he already has. The University of Michigan Law School graduate was made a partner just last month, effective on Jan. 1, 2005, at the 385-lawyer Seattle-based Davis Wright Tremaine. He made partner in five years, instead of the usual 6 1/2 years. The Leawood, Kan., native was also asked to co-chair the firm’s newly formed appellate practice group.
He wanted to spend his pro bono time “helping people and helping causes that don’t always have an experienced and ready advocate.” He trolled the 9th Circuit looking for cases.
Finding the cases
Fisher read the Washington Supreme Court opinion in Crawford and thought it violated a “fundamental tenet of criminal procedure,” the right to confront witnesses guaranteed by the Sixth Amendment. He took the case pro bono.
Michael D. Crawford had asserted the marital privilege to prevent his wife from testifying. A statement she had given to police that contradicted Crawford’s claim of self-defense in an assault (not of her) was admitted over his objection because the judge thought the statement reliable.
A 7-2 majority opinion, authored by Justice Antonin Scalia, echoed Fisher’s meticulous briefing of the historical context of the confrontation clause. Crawford v. Washington, 541 U.S. 36 (2004). The opinion bars testimonial hearsay introduced by the prosecution unless the defense had an opportunity to question the person who gave the statement and that person is unavailable at the time of trial.
Fisher identified the issues in Blakely while talking to his wife, Lisa Douglass, then a King County public defender, as she waded through Washington’s sentencing code. Relying on its reasoning in an earlier case, Apprendi v. New Jersey, 530 U.S. 486 (2000), Fisher was confident that the Supreme Court would rule that the Washington sentencing scheme was unconstitutional because it allowed judges to make factual determinations that increased defendants’ sentences.
He looked for a case to challenge the law and found Blakely, which had already been decided by the state’s court of appeals. The trial judge had raised Ralph Howard Blakely’s sentence above the maximum of the standard range after finding that Blakely had acted with deliberate cruelty.
After the Washington Supreme Court denied discretionary review, Fisher took the case. He used only half of his 50-page allotment for the opening brief.
“My approach was this was a straightforward, easy case for the court to decide.” In the 5-4 ruling, authored by Scalia, the court ruled that juries, not judges, must make the factual determinations that increase sentences above standard guideline ranges, with the exception of a defendant’s criminal history. Blakely v. Washington, 124 S. Ct. 2531.
About 15 other states and the federal sentencing guidelines have similarities to Washington’s code. The federal guidelines have been challenged in U.S. v. Booker and U.S. v. Fanfan, which got expedited reviews and will likely be decided soon after the new year.
Fisher found the justices “intellectually curious-you can’t even strong-arm them with their own cases,” he said. The substance they’re after “is first principles, basic constitutional structure.”