ARTICLE

December 5, 2004
The Supreme Beginner
By David Feige

Most attorneys work their entire careers without appearing before the U.S. Supreme Court. Jeffrey Fisher won two cases before the high court this year at the unheard-of age of 33.

It is a beautiful day in Seattle-warm, sunny, clear-the kind of day locals would rather not tell the world about. Across from the bustle of the Pike Place Market, Jeffrey Fisher stops at a farm stand for fingerling potatoes and fresh asparagus. "Here you go, Mr. Fisher," says a mop-topped twenty-something as he hands over the credit card receipt. As Fisher takes the pen, the clerk blurts out: "Hey, man, are you the guy winning all those Supreme Court cases?" Fisher, shy and unprepossessing, looks stricken. "Uh, yes I am," he stutters. "Well, congratulations on batting a thousand-that's awesome," says the young man, who recognized his celebrity customer from a local newspaper story. Fisher looks sheepish. "Honestly that's the first time that's ever happened to me-really."

Jeffrey Fisher worked at Davis Wright Tremaine, a medium-sized Seattle law firm. Until last year, he had spent most of his time assigned to civil litigation cases, which are the bread-and-butter of law firm practice. Now, he might be one of the most influential lawyers of his generation.

This year, Fisher won two historic U.S. Supreme Court cases. Blakely vs. Washington may well have a bigger influence on the criminal justice system than any case in the last 20 years. The court's decision already has impacted the sentencing schemes of more than a dozen states and could presage the end of federal sentencing guidelines. The ruling in Crawford vs. Washington was almost as radical, precluding the admission of most statements from witnesses who aren't subject to cross-examination, thereby ending many domestic violence prosecutions.

Litigators sometimes work 20 or 30 years before getting a first-and often last-chance to argue a Supreme Court case. But when Fisher stepped to the podium in the fall of 2003 to argue the Crawford case, he had been eligible to practice before the high court for less than six months. Crawford and Blakely were the first criminal cases he had ever argued.

Two wins in the Supreme Court in a single term-"That's nothing short of extraordinary," says Drew S. Days III, U.S. solicitor general during the Clinton administration. That sentiment is shared by U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt, for whom Fisher clerked: "I doubt anyone has ever, at this early stage in his career, argued and won two cases like these."

To get an idea how the lanky, prematurely graying, 6-foot-4-inch Kansan operates, it's useful to start with the Blakely case. In 1998 Ralph Howard Blakely, a diagnosed paranoid schizophrenic facing divorce and the dissolution of his family trust, forced his wife at knifepoint into a pine box in the back of his pickup truck. He drove to Montana, along the way imploring her to drop the divorce proceedings and leave the trust alone. This was not an effective strategy. Police arrested Blakely, who eventually pleaded guilty to second-degree kidnapping. Prosecutors and defense lawyers agreed that under Washington state's sentencing guidelines, Blakely should serve four years in prison. But, as the law allows, Grant County Judge Evan Sperline made his own interpretation of the facts. He decided that the defendant had acted with deliberate cruelty and enhanced Blakely's sentence by more than three years, ultimately sentencing him to 90 months in prison.

Such enhancements happen regularly, but only once (in the Kansas Supreme Court) has anyone successfully challenged the underlying constitutional issue: Can judges lawfully make such determinations in the first place? Lawyers who had tried to raise that question were shot down in Minnesota, Oregon and the federal circuits that considered the issue. In Washington, the state Supreme Court had unanimously declared sentence enhancements as constitutional. But Fisher thought that was wrong.

"I always saw Blakely as an easy case," Fisher says.

He may have, but no one else did.

"Everyone who ever heard Jeff talk about Blakely thought he was crazy," says a colleague of Fisher's, Scott Carter-Eldred.

Cori Beckwith, a public defender in Washington, D.C., agrees: "No one saw Blakely as a winner."

The son of a product liability lawyer and a preschool teacher, Fisher was a driven, unusually focused kid who was attracted to mathematics and science-he liked rigor and clarity even at a young age-and often went without food and sleep to finish massive jigsaw puzzles in a single session.

Fisher was always a good student, but at the University of Michigan law school, he truly excelled. Law school rewards the aggressive and the voluble. Fisher was neither. He usually sat in the back of the classroom far from the Socratic fray. The faculty didn't notice him at first, though his outstanding grades eventually won him a law review editorship and coveted clerkships, first with Reinhardt and then with Supreme Court Justice John Paul Stevens.

In conversation, Fisher is an attentive listener and possesses a quiet, good-natured warmth not often associated with litigators. He has "real star quality coupled with genuine humility," says Bruce Johnson, a partner at Fisher's firm. In an argument, he tends to seem unfailingly correct without being bull-headed.

 Fisher has a modest office with picturesque views of the Space Needle and Puget Sound. It's telling that the photos on the wall aren't of people but of the Canadian lake where he and his wife went on a canoe trip. Mementos of his legal career are scattered around-signed photos of the well-known judges he clerked for, souvenir quill pens from his Supreme Court arguments, a ticket to the Clinton impeachment trial.

In law school Fisher met his wife, Lisa Douglass. Unlike most law students, Fisher didn't want a job in a big-money firm, and Douglass wanted to be a public defender. So they moved to Seattle, looking for a quiet, family-oriented, leave-by-6 kind of life.

Though Fisher and Douglass share a commitment to justice, their perspectives and work experience couldn't be less alike. Douglass, who has engagingly strong politics, works in the trenches, Fisher is in the clouds; she prefers concrete, he'll take abstraction; she focuses on the daily depredations of the criminal justice system, he reads court opinions for fun.

In fact, that's how Fisher found the Blakely and Crawford cases. Neither were being handled by his firm, so he contacted the appellate lawyers and offered his help. Because no one had experience in the U.S. Supreme Court-and frankly thought the cases were long shots-they gave him the high court appeals.

Fisher was sitting on his living room floor when he first identified the issue that led to the Blakely bombshell. Glancing at his wife, who was preparing for a sentencing the next day, it suddenly hit him. "This was about as clear as you could get," Fisher explains. "I mean, she was doing what the judge was going to do-looking at the actual code books to get a guideline number" for the sentence. But because the law allowed the judge to do his own fact-finding to determine the sentence, Fisher believed the judge was invading the province of the jury. Fisher had a good issue, but he still needed a vehicle in which to present it.

Unfortunately, the lawyers working on Blakely's appeal to the Washington state Supreme Court weren't planning to raise the sentencing issue-the same court had already ruled against them on that point in a previous case. But Fisher was convinced he had an argument for the U.S. Supreme Court. He asked Scott Staab, one of Blakely's lawyers, if he could devote some space in his state appeal for the sentencing issue-"to preserve the issue for the high court."

"Quite honestly," recalls Staab, "I thought he was barking up the wrong tree." But Staab made room for Fisher and his issue.

About the same time, Fisher spotted yet another jurisprudential blockbuster. On a summer night in 1999, Michael Crawford and Kenneth Lee had a violent fight during which Lee was stabbed in the stomach. Crawford's wife had witnessed the bout but claimed to have closed her eyes at the critical moment. Crawford insisted that he stabbed Lee in self-defense. Crawford had invoked his spousal privilege, which prevented his wife from testifying; but at the trial, over his lawyer's objections, the prosecution played a tape of her statement to the police-a statement they said contradicted her husband's account of the incident. Crawford's lawyer had nothing to say; he couldn't, after all, cross-examine the tape recorder. Crawford was convicted and sentenced to almost 15 years.

Fisher didn't like it. He reasoned that Crawford had been denied his 6th Amendment right to confront witnesses against him. Fisher argued that the high court should adopt a single simple rule: If the witness isn't in court and hasn't been cross-examined, their testimonial statements shouldn't be used as evidence. But the U.S. Supreme Court had held the opposite position for 25 years. Asking the high court to overrule one of its precedents is not done lightly, and almost everyone with whom Fisher discussed the Crawford case suggested that he take a more moderate approach.

Fisher's colleague, Scott Carter-Eldred, was among the skeptics. He still hadn't been admitted to the bar when Fisher asked him for some research help on Crawford. "After I read the first draft of his argument," says Carter-Eldred, "I thought to myself: This is a slam dunk. It was really that persuasive."

Every Tuesday and Wednesday in the spacious, quiet halls of the nation's highest court, a clerk visits each judge's chambers to deliver stacks of certiorari petitions-the legal memos filed by lawyers on behalf of their clients seeking Supreme Court review of their cases.

Having a cert petition granted is roughly 20 times harder than gaining early admission to Harvard. In 2003, more than 7,000 were filed; the court accepted about 100. For a talented litigator who files two cert petitions a year, it should, statistically speaking, take 35 years of work to get before the Supreme Court once. Given the long odds, the firm was willing to let Fisher devote pro bono time in an attempt to get the court to hear the Blakely and Crawford cases.

Fisher filed his petition in the Crawford case in March 2003, but he had to have a senior colleague sign off on it because he hadn't yet met the requirements to petition the high court. Two months later he filed in the Blakely matter. Both petitions were granted. As Reinhardt describes it: "That's like borrowing a sailboat and discovering America-twice."

On Monday, Nov. 10, 2003, Fisher approached a polished wooden lectern to argue the Crawford case in the most famous courtroom in the United States. Drawing a nervous breath, he uttered the words that advocates have used for nearly 200 years: "Mr. Chief Justice, and may it please the court." Fisher boldly asked the court to throw out 25 years of its own doctrine and adopt his suggested rule.

"It was a really gutsy move" says Richard Friedman, a law professor who has written widely on the 6th Amendment and who sat with Fisher at counsel table. Fisher was persuasive, and on March 8, in a sharply worded opinion written by Justice Antonin Scalia, the court decisively ruled 7-2 in his favor.

"The Crawford case was huge," says public defender Beckwith. "In every single criminal case there is a potential Crawford issue, and in almost every case the Crawford decision fundamentally shapes the kind of evidence prosecutors can use."

Fisher returned to Seattle to begin work on his brief in the Blakely case. It was almost due and he'd been so focused on Crawford that he hadn't even started. There are strict page limits on briefs submitted to the Supreme Court, and to go even a few pages over requires special permission. Lawyers rarely use fewer pages than their allotment. In nine days, Fisher turned out a 25-page masterpiece-half his allotment.

"That's quite unusual," says Charles Fried, solicitor general under Ronald Reagan. "Most advocates wouldn't do it . but I appreciate the panache."

Fisher presented a simple argument that could affect the sentencing structures of more than a dozen states and could call into question the validity of the hallowed federal sentencing guidelines. Argument in Blakely was set for March 23.

On that day, Douglass, who was on leave from the public defender's office to care for their 10-month-old daughter, sat with Fisher at counsel table as his state law expert. Within minutes of Fisher's first words, the deep divisions among the justices were apparent. Questions were fired back and forth across the horseshoe-shaped bench, with Fisher almost reduced to the role of moderator in a great doctrinal debate over the role of judges and juries. Scalia was on the attack. Sandra Day O'Connor was seething about the magnitude of the potential ruling. Justice Stephen G. Breyer seemed despondent, resigned that he was sure to be on the losing side of an issue he had championed.

Finally, after the justices completed public debate, a private vote was taken, and Fisher's argument prevailed.  Scalia again wrote the opinion, this time in a sharply divided 5-4 decision, which invalidated Washington state's sentencing guidelines and had an immediate impact throughout the criminal justice system. For instance, the North Carolina tobacco farmer who had driven his tractor into a pond on the Mall in Washington, D.C., had his sentence slashed from six years to 16 months. Some U.S. attorneys imposed moratoriums on pleas and sentences until they could devise a coherent strategy. A Blakely-related blog chronicled the unfolding legal drama, while legal commentators endlessly debated whether federal sentencing guidelines would survive.

It was, according to Moritz College of Law professor Douglas Berman, "both a stunningly liberal and a stunningly activist opinion. In fact, it's the most liberal decision I've ever read from the Rehnquist court-and certainly the most liberal I've seen written by Scalia. It's as if Fisher has some pixie dust he's sprinkling around the courtroom, making Scalia into a liberal."

The biggest test for Blakely is yet to come. On the first day of its current term, the Supreme Court heard arguments in cases that will determine whether the Blakely decision applies to federal sentencing guidelines. With so much of that sentencing dependent on judicial fact-finding, the guidelines could be toppled. Tens of thousands of inmates could have their sentences reviewed and possibly reduced.

Fisher is not involved in these cases, but whatever the outcome, his legacy is secure. And so is his status at Davis Wright Tremaine. Last month, Fisher-who turned 34 after the Supreme Court decisions-was made a partner at the firm.

David Feige is a public defender and a Soros Justice Media Fellow in New York. "Indefensible," his book about the criminal justice system, will be published by Little, Brown in 2005.