Tuesday, August 31, 2004
Back in Black (The red, actually)
I’ve returned from my Las Vegas vacation, ready to continue the task of Blakely blogging.
I am currently in New York, taking an intensive, one-week professional responsibility course. Although the course keeps me busy during much of the day, my Vegas trip has freed me from other distractions, notably those involving money. A word to the wise: before you play craps, learn the rules.
I see I've missed a lot, particularly the 6th Circuit's ruling that the guidelines are constitutional. Hopefully, in due course, I'll get to the previous week's happenings. For now, I'm going to focus on today's news.
California Courts
The California courts continue deny without prejudice, any relief to which the defendant might be entitled until the California Supreme Court decides People v. Black, S126182, and People v. Towne, S125677. See People v. Bailey, 2004 Cal. LEXIS 8178 (Aug. 25, 2004); People v. Cole, 2004 Cal. LEXIS 8051 (Aug 25, 2004); People v. Gordon, 2004 Cal. LEXIS 8058 (Aug. 25, 2004); People v. Jaime, 2004 Cal. LEXIS 8035 (Aug. 25, 2004); People v. Han, 2004 Cal. LEXIS 8177 (Aug. 25, 2004); People v. Roettgen, 2004 Cal. LEXIS 8055 (Aug. 25, 2004); People v. Smith, 2004 Cal. LEXIS 8161 (Aug. 25, 2004).
News
The Cato Institute has released audio and video of their recent Blakely conference. Access the multimedia stream here.
Although this is surely old news by now (and not very surprising news), the Sentencing Commission has announced that it will file a brief in Booker and Fanfan. James Robinson, a partner in the D.C. office of New York's Cadwalader, Wickersham & Taft, has agreed to write the Commission's brief. The former Dean of the Wayne State Law School has until tomorrow to finalize his brief.
Fellow blogger, Doug Berman has this to say in the article:
I agree with that. In fact, I wrote an Essay that makes a related point.
I am currently in New York, taking an intensive, one-week professional responsibility course. Although the course keeps me busy during much of the day, my Vegas trip has freed me from other distractions, notably those involving money. A word to the wise: before you play craps, learn the rules.
I see I've missed a lot, particularly the 6th Circuit's ruling that the guidelines are constitutional. Hopefully, in due course, I'll get to the previous week's happenings. For now, I'm going to focus on today's news.
California Courts
The California courts continue deny without prejudice, any relief to which the defendant might be entitled until the California Supreme Court decides People v. Black, S126182, and People v. Towne, S125677. See People v. Bailey, 2004 Cal. LEXIS 8178 (Aug. 25, 2004); People v. Cole, 2004 Cal. LEXIS 8051 (Aug 25, 2004); People v. Gordon, 2004 Cal. LEXIS 8058 (Aug. 25, 2004); People v. Jaime, 2004 Cal. LEXIS 8035 (Aug. 25, 2004); People v. Han, 2004 Cal. LEXIS 8177 (Aug. 25, 2004); People v. Roettgen, 2004 Cal. LEXIS 8055 (Aug. 25, 2004); People v. Smith, 2004 Cal. LEXIS 8161 (Aug. 25, 2004).
News
The Cato Institute has released audio and video of their recent Blakely conference. Access the multimedia stream here.
Although this is surely old news by now (and not very surprising news), the Sentencing Commission has announced that it will file a brief in Booker and Fanfan. James Robinson, a partner in the D.C. office of New York's Cadwalader, Wickersham & Taft, has agreed to write the Commission's brief. The former Dean of the Wayne State Law School has until tomorrow to finalize his brief.
Fellow blogger, Doug Berman has this to say in the article:
The prospect that the commission is echoing the government's view on the applicability of Blakely and sidestepping the severability issue is a disappointment, said Douglas Berman, an Ohio State University law professor who is tracking post-Blakely developments on his weblog, Sentencing Law and Policy. Berman asserted that while the Justice Department can be expected to take pro-prosecution stands, the commission ought to have a different and broader perspective that takes the interests of defendants into account. "The commission should be a leader in the post-Blakely world, not a follower," said Berman.
I agree with that. In fact, I wrote an Essay that makes a related point.
Wednesday, August 25, 2004
First Circuit on Ineffective Assistance of Counsel
Phil here again. While I was busy writing the last post to try to get a discussion going on an issue sparked in my mind by Prof. Berman (see below), he has posted a new development. The First Circuit has denied a certificate of appealability based on a prisoner's complaint that his lawyer was inneffective in anticipating the Supreme Court's ruling in Blakely. The case is Campbell v. US, 02-2387 (1st Cir. Aug. 25, 2004), and Prof. Berman has posted excerpts here.
"Just the Facts, M'am"
Joe Friday's classic refrain is an appropriate title for this post in which I want to just highlight one development that I believe hasn't been given due attention in the post-Blakely environment. It seems to me that a cogent argument could be made that some determinations necessary to support enhancements are not factual determinations at all but legal ones. Perhaps this is the answer to Prof. Berman's astute observation about the decision in Paulus (E.D. Wisc.), which you can read on Sentencing Law & Policy. The judge in that case said his determination that the crime at issue in that case contributed to a public loss in confidence in government was not the type of determination covered by Blakely. Was he trying to say that this determination was not a determination of fact?
Smattering of News
This is Phil Fortino posting on Jason's behalf while he is in Vegas, no doubt in a 24-hour hold 'em game by now.
There's just a couple of news items out there this morning. This story from Montgomery, AL describes a fourth indictment handed down againt a drug dealer. Actually, this is the first of the four amended because of Blakely. The newest indictment lists the properties the government may seek to seize if he is convicted. I, for one, think it's curious that the government amends indictments while their official policy is that they need not do so. The previous amendments in this case -- one to up the quantity of marijuana and another to add a charge -- are encouraging, however. They show compliance with the new rules is possible.
You can read about a federal judge in Charleston putting sentencing on hold here.
In Kansas, a federal judge is going to hold a jury trial to determine whether he can depart upwards in a case involving a man with 11 prior DUI convictions. Read about it here.
This editorial by an assistant United States attorney extols the benefits of mandatory minimum sentences (though not very persuasively). I find it humorous that there is a wanted ad for correctional officers just below the editorial.
The Houston Chronicle has an article on the delay of the Enron trial.
There's just a couple of news items out there this morning. This story from Montgomery, AL describes a fourth indictment handed down againt a drug dealer. Actually, this is the first of the four amended because of Blakely. The newest indictment lists the properties the government may seek to seize if he is convicted. I, for one, think it's curious that the government amends indictments while their official policy is that they need not do so. The previous amendments in this case -- one to up the quantity of marijuana and another to add a charge -- are encouraging, however. They show compliance with the new rules is possible.
You can read about a federal judge in Charleston putting sentencing on hold here.
In Kansas, a federal judge is going to hold a jury trial to determine whether he can depart upwards in a case involving a man with 11 prior DUI convictions. Read about it here.
This editorial by an assistant United States attorney extols the benefits of mandatory minimum sentences (though not very persuasively). I find it humorous that there is a wanted ad for correctional officers just below the editorial.
The Houston Chronicle has an article on the delay of the Enron trial.
Viva Las Vegas
After having absorbed countless hours of watching the World Series of Poker, I'm going on vacation in Sin City for a few days. During my absence, good friend and fellow Columbia third-year, Phil Fortino will keep the blog up to date.
I asked Phil to fill-in for me because not only are we good friends, he too is a Blakely aficionado.
If things go poorly in Vegas, I may start soliciting donations for the "cost" of running the blog. (Just kidding...I hope.)
I asked Phil to fill-in for me because not only are we good friends, he too is a Blakely aficionado.
If things go poorly in Vegas, I may start soliciting donations for the "cost" of running the blog. (Just kidding...I hope.)
Tuesday, August 24, 2004
Two New Blakely Essays
Two new Blakely essays are forthcoming in The Columbia Journal of Law and Social Problems. My intimate connections with the Journal, and its staff, have allowed me to make available on this blog drafts of the essays.
The first essay, written by third-year Columbia law student, Phil Fortino, is entitled “A Post-Blakely Era or Post-Blakely Error?” Phil's essay argues that the Guidelines are constitutional. Unlike the Washington statute at issue in Blakely (and in Apprendi, etc.), the Guidelines do not make the sentencing enhancements contingent on judicial fact-finding. Nor do they specify a burden of proof. Judicial fact-finding and the preponderance standard are products of pre-Guidelines case law. Furthermore, pre-Blakely cases implicitly recognize these facts, by ordering changes in procedure but leaving the Guidelines untouched in cases where traditional application of the Guidelines violated Apprendi. Phil claims this history was over looked because no party in the decision-making process had interests that coincided with the correct result. You can access a current draft of the essay here.
The second essay, is entitled “Blakely’s Potential,” and was written by the owner of this blog. My essay argues that Blakely has presented a rare opportunity to critically evaluate and reform sentencing policy. With some guidance from the Court, it may be possible to rewrite the entire federal code, or at a minimum, substantially revise sentencing policy. The essay also argues that the Sentencing Commission should be a target of reform. You can access a current draft of the essay here.
Both authors welcome any comments. Mr. Fortino can be reached here, and I can be reached here.
The first essay, written by third-year Columbia law student, Phil Fortino, is entitled “A Post-Blakely Era or Post-Blakely Error?” Phil's essay argues that the Guidelines are constitutional. Unlike the Washington statute at issue in Blakely (and in Apprendi, etc.), the Guidelines do not make the sentencing enhancements contingent on judicial fact-finding. Nor do they specify a burden of proof. Judicial fact-finding and the preponderance standard are products of pre-Guidelines case law. Furthermore, pre-Blakely cases implicitly recognize these facts, by ordering changes in procedure but leaving the Guidelines untouched in cases where traditional application of the Guidelines violated Apprendi. Phil claims this history was over looked because no party in the decision-making process had interests that coincided with the correct result. You can access a current draft of the essay here.
The second essay, is entitled “Blakely’s Potential,” and was written by the owner of this blog. My essay argues that Blakely has presented a rare opportunity to critically evaluate and reform sentencing policy. With some guidance from the Court, it may be possible to rewrite the entire federal code, or at a minimum, substantially revise sentencing policy. The essay also argues that the Sentencing Commission should be a target of reform. You can access a current draft of the essay here.
Both authors welcome any comments. Mr. Fortino can be reached here, and I can be reached here.
Morning Update
Montgomery, Al. businessman Leon Carmichael has been re-indicted (for the fourth time), this time to comply with Blakely. This story in the Montgomery Advisor details the case up to this point.
Yesterday, Sentencing Law and Policy covered the denial of Washington’s rehearing petition to the Court in Blakely (details here). This came as no surprise to veteran court watchers who think the Red Sox won the World Series the last time the Court granted a rehearing.
Yesterday, Sentencing Law and Policy covered the denial of Washington’s rehearing petition to the Court in Blakely (details here). This came as no surprise to veteran court watchers who think the Red Sox won the World Series the last time the Court granted a rehearing.
