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September 21, 2004

The Respondents' Briefs in Booker and Fanfan

I have now received the brief filed on behalf of Respondent Fanfan in the Supreme Court. It can be downloaded here:
Download fanfan_respondent_brief.pdf

I expect to have the Booker brief for posting soon, too.

UPDATE: And here it is:
Download booker_respondent_brief.pdf

September 21, 2004 at 02:53 PM | Permalink


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The respondent's brief in Fanfan mislaid a very large arrow in the quiver to shoot down the petitioner's "symmetry" argument on the burden of proof issue. Congress has already placed its blessing on the "asymmetry" the petitioner claims it would not. Read the last sentence in 18 USC 3593(c).

Posted by: Thomas J. Yerbich | Sep 21, 2004 7:29:28 PM

If one decides the case on the briefs, it seems to me that the respondents' briefs should carry the day. Both presented well articulated principled arguments. The Booker brief had an edge on the Sixth Amendment argument, especially its use of the historical perspective and strong policy underpinnings for the use of juries. On the other hand, I believe the Fanfan brief was slightly better on the issue of severability [despite the fact it referred to Arizona's response to Ring but overlooked what Congress did in 3593(c)].

Fanfan did commit one glaring error, it referred to Justice Kennedy as "concurring" in Blakely when he in fact dissented. Both briefs were a trifle long and both did at times tend to get repetitive (but then that is the observation of a grumpy old man whose eyes start to glaze over about page 20).

A few weeks back you wondered who the petitioner was trying to "peel off." It seems to me that that the respondents may have been trying to "peel on" Justices Breyer and Kennedy. Booker cited or quoted Justice Kennedy twice, while Fanfan had three. Both also cited Justice Breyer twice They probably believe that Justice O'Connor already is predisposed to believe Blakely applies to the USSG but since Justice Kennedy did not join in that part of Justice O'Connor's dissent in Blakely, they may hope to change his mind.

Posted by: Thomas J. Yerbich | Sep 21, 2004 8:07:15 PM

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