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October 9, 2004

Waiver: a Blakely "briar patch"

Some of today's panels at the Stanford Roundtable conference on Blakely (recently discussed here) will be covering plea bargaining and other post-Blakely litigation realities, and I am especially eager to hear discussion about waiver. Recall that, as detailed here, the Federal Public Defender in the Northern District of Texas was moved to file an amicus brief Booker and Fanfan simply to spotlight some of the issues surrounding the possibility and legalities of Blakely waivers.

Additional proof of the importance of these issues come from this interesting law.com article discussing disputes over the wording and usage of Blakely waivers in the California state courts. Here's a few snippits from a fascinating article:

San Francisco prosecutors have recently started using so-called Blakely waivers in felony plea bargains.... But across the board, deputy public defenders are refusing to sign. If necessary, they'll offer clients an alternative written by their office, said Public Defender Jeff Adachi....

[P]rosecutors across the state have started demanding Blakely waivers. Under San Francisco's, a defendant would agree to have a judge determine any aggravating fact under existing California statutes and court rules.

Though Blakely waivers may not have much of an impact in plea bargains where a defendant agrees to a prison term, probation deals present more of a battleground. If the client agrees to a Blakely waiver in such cases, Adachi said, "we're setting them up to receive the aggravated sentence when they violate probation."

Adachi said that with his form, the DA would have to let defendants know up front which aggravating factors they face if they violate probation. The DA's "form goes so far beyond what a Blakely waiver requires," Adachi said. Adachi's version specifies a judge would have to determine aggravating factors beyond a reasonable doubt -- not by a preponderance of the evidence.

The burden of proof issue flagged in the article is especially interesting since there is some real question whether a defendant can in fact "waive down" the burden of proof. (See generally the discussion of these issues here and here.)

Finally, it is worth noting that Judge Posner at the end of his opinion in LaGiglio discussing bail issues (detailed here) explained that the district judge might need to consider the government's claim that the defendant "waived or forfeited reliance" on Blakely/Booker issues or could perhaps avoid having "to enter that briar patch." Though such avoidance might be possible in LaGiglio, many courts indisputably will soon have no choice but to go deep into the waiver briar patch (or should it be "Breyer patch").

October 9, 2004 at 10:05 AM | Permalink


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