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The Supreme Beginner

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.

December 05, 2004|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.

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 twentysomething 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.

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