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October 2, 2004

Bench memos, mooting and more questions

I hope to spend this weekend watching important baseball games, a Big Ten battle and perhaps some golf, though I may also take the family to see this Nemo wannabe. But I would guess that SCOTUS clerks may be spending this weekend putting the finishing touches on their Booker/Fanfan bench memos and that counsel are conducting moot courts to help prepare for Monday's big argument.

Though I suggested some pre-argument readings here, it would probably be more helpful to clerks and counsel to return to possible questions for oral argument. Here are a few more kicking around my brain:

To the lawyer for the government: Does your argument that Blakely does not apply to the federal guidelines because Blakely was just an application of Apprendi risk making Blakely fully retroactive to June 2000 for all the states?

To the lawyers for the defendants: What should happen in the thousands of cases "in the pipeline" in which defendants entered pleas before Blakely and in plea agreements acknowledged and agreed to judicial application of the guidelines?

Also, let me note the smart (or at least interesting) question suggested here in the comments to a previous post.

October 2, 2004 at 11:25 AM | Permalink


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I don't think that question was really so "smart," for reasons explained in a follow-up comment I just posted to the earlier item.

Posted by: Peter G | Oct 2, 2004 3:50:48 PM

Out of respect for your insights, Peter G., I have tweaked my description. And, for what it is worth, I have long thought Dunnigan and Watts and Edwards SHOULD be overruled. Indeed, I challenge any and everyone to read Watts and Blakely together and decide which case is more in keeping with our legal traditions and beliefs.

Posted by: Doug B. | Oct 2, 2004 3:55:18 PM

if you have already pled guilt before blakely and have not been sentenced and at sentencing you file a motion to make a blakely objection on a enhacement does can the goverment withdraw there plea? or can the judge rule on it?

Posted by: sp | Oct 2, 2004 6:39:53 PM

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