Luck is the result of preparation meeting opportunity.
Most lawyers never get near the inside of the U.S. Supreme Court, but Jeffrey L. Fisher, 34, developed and won two of the most significant, fundamental justice, criminal procedure cases, decided by the Court in years, Blakely and Crawford.
Blakely requires juries, not judges, to
determine whether aggravating sentencing factors are true, beyond a
reasonable doubt. Until now, judges have been determining aggravating
factors as they've felt like, in order to reach a result, meaning a greater prison term after a jury trial. In a plea bargain without a jury trial, the term is (usually) stipulated to, so the aggravating and mitigating factors have already been accounted for without the need for special findings, other than to paper the deal. It's when the prison term is left to the judge's discretion that problems arise. Suddenly all offenses seem to become especially 'sophisticated,' 'heinous" (mispronounced by the prosecutor as HIE-EEN-OUS, in "My Cousin Vinnie."), or otherwise worthy of more years in the Joint.
Crawford puts the teeth
back into the Confrontation Clause, prohibiting the use of
'testimonial' hearsay (it's all testimonial, but that's another
quarrel) as opposed to some other kind. If it's not testimonial, it
probably isn't hearsay in the first place. Again, another quarrel for
another day. You can keep tabs on these quarrels by visiting Prof. Richard Friedman's blawg, here. He is the U. Michigan Law School professor of Evidence, etc., with a studious interest in English common-law history, who acted as 'second-chair,' with Fisher, on Crawford. For more on Blakely v. Washington, see the margin to your lower- right under that caption for a list of online resources.
Sir Walter Raleigh, the sometime favorite of Elizabeth I, was condemned by a committee of court politicians, on affidavits by liars, under her successor monarch, James I, who felt the need to placate the Spaniards after a peace treaty that was supposed to put an end to the privateering that had existed since before the Armada. Sir Walter, one of the great privateers, along with Drake and others, didn't much care for the Spaniards at all.
British merchant adventurers, such as Raleigh and Drake, saved themselves from condemnation as pirates by arming themselves first with a "letter of marque" issued by the Crown, authorizing them to prey on the annual Spanish treasure fleet, laden with gold from the New World.
Religious differences contributed to the heightened sense of adventure, England having gone nominally Protestant under Elizabeth's father, Henry VIII, but incompletely in fact, setting up much life-and-death intrigue under Elizabeth, which James tried to halt, being a closet Catholic himself.
Sir Walter never got to confront his accusers at his 'trial' and lost his head as a result. Our constitutional rights are directly traceable to real world experiences such as this, for those interested in doing the work, or reading up. Prof. Friedman did the work. You can read up. See the opinion in Crawford for the tales.
The Supreme Court adopted the results of Prof. Friedman's fruitful scholarship, citing the Raleigh case and others from English common-law pre-dating the establishment of the U.S. as well as the different system of Napoleonic law on the Continent.
Raleigh made several attempts to found a commercial colony in Virginia, at Roanoke and Jamestown, as opposed to the religious colonies founded in Massachusetts by Puritan pilgrims who felt that the Protestant reformation of England hadn't gone far enough, especially under James.
Fisher and Friedman made a formidable team, showing once again that the past isn't dead; it isn't even past.
Of particular interest in the article below, is Mr. Fisher's comment, in
the final paragraph, that the justices are interested in discerning
bedrock constitutional principles, such that an advocate
before the Court cannot succeed merely by 'strong-arming' them, not even by hitting the justices with
their own prior case decisions.
The nine justices are, after all,
the only judges in the land who are not bound by precedent.
Justice Clarence Thomas is said, by Justice Antonin Scalia, not to believe in precedent at all.
Good for him! Why shilly-shally when you can take the bull by the horns?
I guess this is all right if you're in the business of overruling precedents. Some do outlive their usefulness, like Plessy v. Ferguson (1896),
for example. As for the rest, if we're relying on them, they
stand, unless and until they're shown to violate fundamental
constitutional tenets, such as happened to Plessy, which legalized Jim Crow, and was overruled in Brown v. Board (1954), holding separate no longer to be equal, which it never was.
Has Mr. Fisher's extraordinary success been the result of Luck?
The following account shows preparation and opportunity both being managed by one fine attorney to produce stunning results.
 ©2004 National Law Journal Online Page printed from: http://www.nlj.com An associate rocks criminal procedure Leonard Post Staff reporter The National Law Journal 12-20-2004 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." |