Politics & Government

S.C. inmate's Supreme Court win earns him criminal probe

WASHINGTON — Stanford Law School professor Jeffrey L. Fisher and South Carolina felon Michael R. Ray are unlikely partners in a criminal-sentencing case that the Supreme Court heard Monday.

Working behind bars, Ray wrote a brief that was good enough to persuade the high court to consider an appeal by fellow prisoner Keith Lavon Burgess. Few attorneys get that far. Fewer still face the tangled consequences that Ray confronted.

While Fisher presented oral arguments Monday, Ray is reportedly under criminal investigation for unauthorized legal practice for his handling of Burgess' case. The investigation could complicate Ray's scheduled April 14 release from Estill Federal Correctional Institution, where he's been serving time for fraud.

"It would be nice to see the Palmetto State dedicating the thousands of dollars being expended in this (investigation) for a prisoner re-entry services program ... and for ex-felon job creation," Ray declared in a self-penned news release.

Ray's outside attorney, C. Rauch Wise, said late Monday afternoon that "he was under investigation, but I have heard conflicting stories about its status."

South Carolina Deputy Attorney General Allen Myrick Jr. declined to comment on the case Monday. Myrick's spokesman, Mark Plowden, said in an e-mail late Monday afternoon that "we did receive information about (Ray's) activities, but have taken no legal action of any kind."

The case that started all this involves a rather technical question over what prior felonies count when judges impose minimum mandatory sentences. Burgess almost certainly will lose, based on the questions during the unusually brief oral arguments Monday morning.

The more unexpected turns may revolve around Burgess' initial legal representation.

Ray, now 42, is completing his third prison term in the medium-security Estill facility west of Charleston. He's a certified paralegal, a self-confessed gambling addict and a persistent jailhouse lawyer. He told the National Law Journal that he's filed about 75 petitions with the Supreme Court over the past 20 years, succeeding for the first time with Burgess' appeal.

Fisher inhabits a different world. The Duke and University of Michigan Law School graduate has argued before the court eight times, including a $2.5 billion case last month involving the Exxon Valdez oil spill. The 37-year-old former Supreme Court clerk seemed at ease Monday even as justices appeared determined to rule against his client.

"I hate to tell you," Justice Stephen Breyer told Fisher at one point, indicating that he was leaning toward the Bush administration's arguments.

Further foreshadowing the case's likely outcome, newly minted Assistant Solicitor General Nicole Saharsky sat down after using only about seven minutes of the 30 minutes allotted for oral argument. That hardly ever happens, even in a courtroom in which justices prefer brevity.

Neither Ray nor Burgess saw the exchanges. Ray remains in Estill and Burgess is now imprisoned in New York, where he's serving out a 13-year sentence.

Burgess pleaded guilty to selling 240 grams of crack cocaine in the parking lot of a Florence, S.C., shopping mall. He'd previously received a one-year suspended sentence for cocaine possession. South Carolina law termed this earlier conviction a misdemeanor. Federal prosecutors, though, said the earlier conviction counted as a felony because the sentence hit the one-year mark that customarily defines a felony.

Consequently, Ray received a higher sentence as a repeat felon.

Ray's initial legal filing on Burgess' behalf cited a "grievous ambiguity" over what counts as a felony for sentencing purposes. Under a legal doctrine called the rule of lenity, such uncertainties should be resolved in favor of the defendant.

"It is a continuously vexing problem, how to define felony," Fisher said.

The court appointed Fisher to represent Burgess after accepting the petition that Ray filed. Getting that far was a remarkable success for Ray, who filed the case "in forma pauperis" to avoid the court's standard $300 filing fee. During the court's 2006-07 term, 7,186 in forma pauperis petitions were considered. Of these, the court accepted only seven for review.

McClatchy wrote about the case Jan. 17, focusing on Burgess. The Associated Press followed up about two weeks later, as did the National Law Journal. Shortly afterward, Ray learned that the South Carolina Attorney General's Office was examining whether was he was practicing law without a license.

"Apparently," Ray wrote of his case, "all the attention Ray has garnered has infuriated Myrick."


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