I understand the Indiana Prosecuting Attorneys Council (IPAC) has submitted its own amicus brief in Heath and Smiley today, two days before the arguments. Frankly, that does not seem quite cricket to me. The Marion County Public Defender Agency's brief was in in time for the State to respond. And the Supreme Court order permitting the filing of that brief explicitly provided two weeks for the State to answer.
It will be almost impossible for either Heath or Smiley to respond to IPAC's brief. If IPAC doesn't say anything new, it doesn't matter. If it does, I think it matters a lot. Maybe the Supreme Court will do the right thing and not permit IPAC to file the brief. Or maybe the right thing is to permit Heath and Smiley some amount of time after Wednesday's argument to file written responses.
I hope to have the IPAC brief later this evening and will post it with or without commentary--and we'll see if IPAC says anything new.
There has been some speculation over on Sentencing Law & Policy that opinions in Booker and Fanfan will appear tomorrow. In another post, there appear the reasons that they won't. If the opinions do come down, it's going to make things wild and woolly in Indianapolis on Wednesday--I'm assuming, of course, that the Court's not going to say in either case, "Aw shucks, we didn't really mean it."