Greetings Court fans!

 

Yesterday, the Court granted cert in two cases and issued a brief per curiam opinion summarily reversing the 9th Circuit. For those of you keeping score in the contest to issue the first opinion of the Term — and there is a contest — this does not count because it’s not a signed opinion. Of course, if I could definitively identify it as an O’Connor opinion, I’d probably conclude otherwise, but since the author isn’t immediately apparent, the contest continues!

First, on the grants: The Court will continue its ongoing battle to define the limits of its 2000 decision in Apprendi v. New Jersey . In Blakely v. Washington (02-1632), the Court will consider the following question: Must a fact, other than prior conviction, that is necessary for upward departure from statutory standard sentencing range be proved according to procedures mandated by Apprendi . (A former colleague of mine worked on this cert petition — congratulations Jeff!) In the other case granted yesterday, Hiibel v. Sixth Judicial District Court (03-5554), the Court will decide whether a state statute that requires people stopped by police to identify themselves violates the Fourth Amendment. Is it just me, or isn’t this the kind of question that you would think had already been answered?

And in the “opinion” from yesterday, Yarborough v. Gentry (02-1597), the Court summarily reversed the 9th Circuit in a habeas case. The 9th Circuit found that Gentry’s lawyer provided constitutionally ineffective assistance of counsel in his closing argument during Gentry’s trial on assault charges. The federal habeas statute requires federal courts to be extremely deferential to state court conclusions, and the Court here found that the 9th Circuit failed in that duty. In reaching this conclusion, the Court went through counsel’s closing argument, and explained — with liberal citation to various treatises and articles on trial practice — why counsel’s argument could be considered a reasonable exercise of trial strategy. There’s not much else to say about this case, so I’ll close with my favorite quote on oral arguments from the opinion, a quote attributed to Justice (and former Solicitor General) Jackson: “I made three arguments of every case. First came the one that I planned — as I thought, logical, coherent, complete. Second was the one actually presented — interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.” Something to keep in mind as you prepare for your next argument.

That’s all for now. Thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin at 203-498-4400, or visit our website at
www.wiggin.com.