The transcript of the oral argument in Shepard v. U.S., No. 03-9168 is available, and we have also added it to the sidebar. Shepard is the ACCA case in which the First Circuit (at least in my view) went beyond the rule established by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990) by looking at police reports to determine whether defendant's prior convictions were for generic burglary. Shepard was also the case in which the NACDL filed an excellent amicus brief (see sidebar) arguing for the Court to revisit Almendarez-Torres exception to the Apprendi rule. Curiously, petitioner Shepard did not even cite Almendarez-Torres in his brief, and at oral argument counsel was asked straight out by Justice O'Connor " Do you join the amici in saying Almendarez-Torres has to be overruled?" to which counsel for petitioner Shepard answered "No, I do not."
As I read the transcript, I thought things were going really bad for petitioner's counsel. But as I continued reading, it appeared that the Deputy Solicitor General was also getting jolted.
You can find more detailed information regarding Shepard in previous posts at Macondo Law.
All briefs are available at the sidebar here under Opinions, Briefs & Oral Argument Transcripts.