At 33, Seattle attorney has won two Supreme Court cases

By Maureen O'Hagan
Seattle Times staff reporter

MIKE SIEGEL / THE SEATTLE TIMES Jeffrey Fisher, a lawyer at Davis Wright Tremaine in Seattle, has argued two cases before the U.S. Supreme Court and won both. The rulings may reshape parts of the justice system in this country.

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Each year, the United States Supreme Court receives about 7,000 petitions asking for hearings but grants only about 100. In other words, simply getting a case before the country's highest court is a feat.

But winning two cases? In a single year? When you've only been practicing law for four?

Unheard of.

Yet that's exactly what Seattle lawyer Jeffrey Fisher did.

And these weren't just any old cases. Fisher's two wins could fundamentally change the way justice is doled out nationwide.

The Department of Justice has scrambled to write emergency procedures to deal with the latest Fisher case on criminal sentencing, and Congress, as well as state lawmakers across the country, already is trying to come up with a new law to fix the problems Fisher raised. Meanwhile, prosecutors and defense lawyers are coming to terms with the issues Fisher raised in his other case, which concerned defendants' rights to cross-examine witnesses.

Fisher's Supreme Court victories Crawford v. Washington: In this case, decided in March, the Supreme Court ruled that defendants have a constitutional right to cross-examine witnesses against them. The case involved a taped statement from the defendant's wife, which was played at trial even though the wife did not testify. The ruling has created concerns over whether tape recordings of 911 calls can be admitted as evidence. Blakely v. Washington: Decided in June, this case said judges are not permitted to increase sentences based on their own estimation of the severity of a crime. Instead, any facts that increase sentences have to be proved beyond a reasonable doubt to a jury, or the defendant has to admit to them. The decision throws out part of a 20-year-old sentencing law that set a standard range for every crime but allowed judges room to tailor the penalty for an individual defendant.

Oh, and by the way, those were the first criminal cases he had argued, at the Supreme Court or anywhere.

And the guy still hasn't reached his 34th birthday.

"I've been trying throughout my career to get the Supreme Court to consider one of my cases, and I haven't succeeded once," said David Zuckerman, who has been a lawyer four times longer than Fisher and was involved in brainstorming some of the issues.

With all the attention he has received, it would be understandable if Fisher came down with a swelled head.

But the consensus among colleagues is that Fisher is humble. And likable and plain-spoken, too.

"He's a down-to-earth guy," said Sheryl Gordon McCloud, a defense lawyer who wrote a friend-of-the-court brief on one of the cases. "I think that's why people listen to him."

Defying the stereotypes

Lawyer stereotypes don't fit when you're talking about Fisher, who gracefully has navigated a nationwide ruckus over the effects of his court victories, one in March and the other last month.

All this has left some of Seattle's most experienced criminal-defense lawyers murmuring, "Where did this guy come from?"

Kansas City, for starters, which is where Fisher grew up. Then it was off to Duke University for a degree in English, followed by a year as a paralegal before he decided he wanted to be a lawyer, like his dad. Fisher studied law at the University of Michigan, known as one of the top law schools in the country, and landed a coveted clerkship at the U.S. Supreme Court, working for Justice John Paul Stevens.

With that on his résumé, Fisher could get just about any legal job he wanted. Most former Supreme Court clerks opt for lucrative positions with big firms specializing in Supreme Court matters, or make the switch to academia.

That's why what Fisher did next struck his peers as, well ... crazy. After finishing up with Justice Stevens, he and his wife, who also is a lawyer, left the high-powered world inside the Beltway and moved to Seattle. To some D.C. dwellers, that's a little like choosing to go from Major League Baseball back to the minors.

"We chose lifestyle ahead of work," Fisher explained. "Probably a lot of people thought I was going to the hinterlands."

As it turned out, Fisher's gamble paid off.

His wife, Lisa Douglass, landed a job first, accepting a position at The Defender Association, the public-defenders organization. Fisher then found work at Davis Wright Tremaine, a large firm that handles civil cases. (That firm represents The Seattle Times in some public-records cases; Fisher did some minor work on one of the newspaper's cases.)

Douglass has since taken time off to care for their 13-month old daughter, Eleanor.

Head of the class

From the "hinterlands" of Seattle, Fisher became the first among his classmates to argue in front of the Supreme Court.

He came across the cases as a volunteer for the National Association of Criminal Defense Lawyers, reviewing criminal cases for potential appeals issues. Dinner-table conversations with Douglass about her day-to-day work in the criminal court helped him identify concerns. He then began searching the cases for the best examples he could use to right what he perceived as wrongs.

"Almost everybody thought I was going to lose," Fisher recalled of the cases he chose to fight.

He didn't. In March, he convinced the courts that defendants' rights to cross-examine witnesses against them have been deeply eroded, an opinion that overturned 25 years of precedent and has sweeping implications.

Then last month, the court ruled that sentencing rules that allow judges to add years to a defendant's sentence without the supporting facts being proved beyond a reasonable doubt are unconstitutional. The decision upset a system that has been in place in about a dozen states for more than 20 years and threatens the very foundation of federal sentencing, as well.

"What I have feared most has now come to pass," Justice Sandra Day O'Connor wrote in a passionate dissent on the most recent decision. "Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy."

This is the case that has created the most buzz. Already, several judges have decided that federal sentencing guidelines are unconstitutional.

Lawyers also are speculating on the impact the case might have on Martha Stewart's sentence for obstruction of justice and on Enron founder Kenneth Lay's criminal indictment, not to mention other, lesser known, defendants.

Here in Washington, the legislature has convened a committee to figure out how to fix the sentencing law.

Meanwhile, the Department of Justice issued a memo to prosecutors saying that if the decision is applied in federal court, their 1987 sentencing law could be "unworkable."

No one, Fisher included, anticipated this reaction.

"Jeff is a really humble person," Douglass said. "He doesn't really take it as a personal victory.

"He was just happy."

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

Copyright © 2004 The Seattle Times Company

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