July 17, 2004
Fanfan to the Supreme Court?
This evening I had forwarded to me an e-mail that was posted on the NACDL list-serve. It suggests that the Solicitor General is thinking about appealing the case of US v. Fanfan directly to the Supreme Court. Background on Fanfan, decided on June 28, 2004 by Maine District Judge D. Brock Hornby can be found here.
Here's the text of the e-mail from Rosemary C. Scapicchio posted on the NACDL list-serve:
I received a message from Michael R. Dreeben from the Solicitor General's Office on Friday. They claim they are considering appealing Fanfan's sentence directly to the Supreme Court. We did not file an appeal because we got the benefit of Blakely. That makes this case a pure sentencing issue. Dreeben is asking about cross-appeal. Claims he has spoken to the Supreme Court and has tentatively set a schedule as follows: Government to file their petition by August 2, 2004. Fanfan response due in 10 days. Government will file it's brief by end of August. Fanfan by September. Argument the first Monday in October. I have not officially responded because I am looking for everyone's input and I need to speak to Fanfan. Any and all suggestions welcome.
The (much needed) break of the weekend has allowed me to finalize some enchancements to the blog. I won't go through all the technical tweaks, but most fundamental is the addition of new categories sub-dividing the Blakley world, which can now be found in the category archives. I hope this helps readers focus on Blakely developments of particular interest. Also, there is now a search box to help in this way as well.
More importantly, I can now officially announce my affiliation with Paul Caron and the Law Professor Blogs Network he has developed. Paul's wonderful TaxProf Blog was one of my inspirations for starting this blog, and I am very pleased to be working with him and tech wizard Joe Hodnicki.
Blakely developments in Arizona
A few recent news articles suggest that Arizona will be an interesting state to watch for Blakely developments. First, this article highlights that in Arizona, defense attorneys "find themselves in rare agreement with prosecutors on one issue: there's no need for the Legislature to rush to change state law in response to a U.S. Supreme Court ruling that may affect the way Arizona sentences criminals." I highly recommend reading this entire article, which is rich with information about coping efforts and plans for Arizona state sentencing. Among the interesting tidbits:
Maricopa County Public Defender James Haas said the criminal justice system's response to the ruling so far varies, with some counties using plea agreements that have defendants waive the need for jury findings, some reluctance by judges to impose sentences beyond the presumptive terms and one judge reportedly declaring that the ruling doesn't apply to Arizona.
Also, there is apparently a healthy collaborative spirit as the system is thinking about long-term fixes:
[D]efense attorneys are reaching out to prosecutors, scheduling informal meetings in coming weeks. "We may not agree on what we're going to do but at least we ought to talk together."... However, it's likely that numerous sentencing issues stemming from the ruling will still have to be fought out in court - no matter what the Legislature does in response, Haas said. "Every time you talk to people you come up with new issues."
And to provide a ground level view of post-Blakely life in Arizona, here is an article describing Blakely's impact on a manslaughter prosecution of Lee Parulski. Here's an interesting snipit:
During Thursday's hearing, Jim Coil, the prosecutor, said that he offered three options to Mike Rollins, Parulski's attorney, after the Blakely ruling. Coil said Parulski could waive his Blakely rights; a new plea agreement in which Parulski would plead guilty to second-degree murder could be signed; or a jury could be called. Rollins said he rejected the waiver or a new plea agreement. He said calling a jury would be acceptable. However, there is no procedural mechanism under Arizona law to call a jury in a case involving a plea agrement.
July 17, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
The week that was
Though I have an affinity for hypebole, I do not think it is an overstatement to call the work week just ended the wildest and wackiest week ever in the federal criminal justice system. We had at least a dozen major court rulings, not to mention a Senate hearing and then Martha. Whew. Though later I may have some posts with deeper reflections, for now I want to just recommend weekend reading:
First, I highly recommend Judge Colleen McMahon's thoughtful decision in US v. Einstman, No. 04 Cr. 97 (SDNY July 14, 2004). Judge McMahon, expressly "adopting the reasoning" set forth by Judge Paul Cassell in US v. Croxford, does not break any radical new ground in her decision to find the guidelines unconstitutional and also not severable. But she beautifully enhances the discussion of the major issues, while also becoming yet another judge to state on the record that she wishes "that the Supreme Court will address this issue immediately ... and in an expedited manner."
Second, as the comments here highlight, Judge Weinstein's decision in US v. Khan, No. 02-CR-1242 (EDNY July 12, 2004) sets forth the "history of juries and judges cooperating in sentencing in the United States," and does so in a way that might stimulate rethinking of the very rights that have engendered this Blakely revolution.
Finally, providing perhaps the tightest review of the week that was, in US. v. Thomson, 2:03-00187-02 (SDWV July 15, 2004), the esteemed Judge Joe Goodwin (of Shamblin fame) ultimately concluded that he had to stop the madness, at least in his courtroom. Reviewing all the major and divergent rulings of the past two weeks, Judge Joe Goodwin concludes as follows:
The court FINDS that consistent application of the law is of paramount importance in sentencing matters. Therefore, in the interests of justice, the court will move all sentencing hearings to a date after October 15, 2004.
July 16, 2004
Law professors always want to have the last word
Though everyone knows that Dahlia Lithwick rocks --- and she really does --- I couldn't let her have the last word in the on-going debate over whether the Supreme Court needs to get in gear and take a Blakely case ASAP. Luckily for me, the great folks at Slate allowed me to respond to Dahlia's argument that there no reason for the Supreme Court to feel any urgency about Blakely developments. You can find here my article entitled, "Supreme Court Cleanup in Aisle 4: Blakely is too big and messy to ignore." I look forward to hearing what everyone thinks about my attempt to do Blakely hip.
I am planning on getting a good night of sleep tonight, and perhaps I'll be dreaming about the California Supreme Court's ability to get right to work on the Blakely issue. Here's my prior post discussing People v. Towne, the first case in which Blakely issues will be examined by the California Supreme Court.
At first, based on a read of the lower court opinion, it was hard to figure out whether Towne was going to present the Blakely issue cleanly. Helpfully, additional information --- particularly this supplemental letter containing points and authorities in support of the defendant's argument for a reversal of his sentence to the upper term --- suggests that Towne should be a very interesting and effective case for state consideration of Blakely. Also helpful and interesting is this article giving background on the case.
Finally, it is worth highlighting that the fine folks at the First District Appellate Project now have a host of additional California-specific briefs/petitions on their fine FDAP Blakely Page.
Martha is getting Blakelyized, while Olis isn't
Interestingly, Martha Stewart, according to this story, is going to be free pending appeal because of Blakely. Judge Cedarbaum apparently told Stewart:
In view of the turmoil resulting from the Supreme Court's decision in Blakely v. Washington, I grant your application for a stay of sentence pending appeal.
Meanwhile, according to this story, US District Judge Sim Lake denied a request by former Dynegy Inc. finance executive Jamie Olis -- who I believe has just recently started serving his severe 24-year term for a fraud calculated to have resulted in a huge financial loss -- to be freed from prison pending an appeal of his November conviction.
Though I am not intimately familiar with either case, my first reaction is that Olis generally has a much, much stronger Blakely claim on the facts. But, of course, as of this writing the guidelines are still in force in the Fifth Circuit while everything is still up from grabs in the Second Circuit while we wait for the Justice to speak about the certified questions. Plus, though I am really not an expert on these issues, I think different considerations come into play when the question is freeing someone already incarcerated, as opposed to allowing someone to remain free. Thoughts?
July 16, 2004 in Blakely Commentary and News, Blakely in Sentencing Courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack
Though Judge Cassell is still the leader in the clubhouse with 3 major Blakely decisions to his name, the Seventh Circuit is helping to set the pace for circuit courts with another Friday afternoon entry. In Simpson v. US, the defendant asked "for permission to file a second or successive collateral attack under 28 U.S.C. § 2255" following Blakely. The Seventh Circuit dismissed Simpson’s application, but did so "without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review."
Interestingly, the Seventh Circuit, in a unanimous opinon written by Judge Rovner joined by Judges Ripple and Williams, flatly concluded that the "rule announced in Blakely is based in the Constitution and was not dictated or compelled by Apprendi or its progeny." Then, after explaining how the Blakely rule would impact Simpson's sentence, the court explained:
Assuming that the Supreme Court announced a new constitutional rule in Blakely and that Simpson’s sentence violates that rule, the proposed claim is premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization under § 2244(b)(2)(A) and § 2255 ¶8(2).... Should the Supreme Court announce that Blakely applies retroactively to cases on collateral review, Simpson can file a renewed application.
And, speaking of leaderboards, through two rounds of the British Open, Skip Kendall is the surprising leader at -7, while my pick Ernie Els is tied for fifth at -4 (along with Vijay Singh and others). Phil Mickelson posted an impressive 66 today to get in at -3, while Tiger Woods is hanging around at -1. Should be a great weekend of golf.
Judge Weinstein Speaks!!
I'm back at it even faster that expected because I just received two opinions authored by EDNY Senior US District Judge Jack Weinstein. I have not had a chance to even glance at these opinions, but because of the source I am sure they are fantastic and fantastically interesting, worthy of posting sight-unseen. More commentary on this front, too, before long.
UPDATE: Even if you are not a fan of Star Trek, you cannot help but love the Wrath of US v. Khan. Though I've only now had a chance for a very quick read, the decision is classic Weinstein, ingeniously wacky and wonderful, and it also honors this blog with a cite. (Of course, Weinstein has long been the hero of writers interested in cite counts, and he does not disappoint here.) More substantive commentary later.
And I have so much to talk about after having a terrific morning in Oxford, Ohio sharing a podium with USSC Vice Chair John Steer and hearing the on-going struggles and concerns of prosecutors as they try to keep the wheels of justice turning. Of course, you'd never guess what we spent our time talking about.
Later this afternoon (much later, I fear), I will have a series of posts on various matters -- including commentary on this decision by US District Court Judge Miriam Goldman Cedarbaum to impose (and also stay pending appeal) a sentence for Martha Stewart of five months' imprisonment, five months in home confinement, two years of supervisory probation and a $30,000 fine. More soon.
July 15, 2004
Stop the world (for a few hours)
After this post, I am off-line for a while so I can travel to the far reaches of Ohio for a long-planned talk to the US Attorneys for the Southern District of Ohio. With all the commotion of this week, I have only been able to outline my presentation. Here's what I have: "Blakely, WOW! Montgomery, HUH? Let's Discuss." As before, I'm sure the folks at the SCOTUS Blog, How Appealing and the Blakely Blog will do a great job covering breaking Blakely news until I return.
Dahlia Speaks (about Supreme Court scuttlebutt)!
I am pleased as punch that Dahlia Lithwick — who at this fan site is astutuely described as "the rockingest Supreme Court columnist ever ever ever" — has waded in to the Blakely pool (or should I say quagmire) with this commentary cautiously titled "No-Good Lazy Justices: After the Supreme Court's sentencing case, the sky is falling. Hooray!"
Part of the reason I am giddy (and flattered) is because Ms. Lithwick references this blog in her piece, and even calls this blog "wonderful." But even more significant and important is the fact that her thoughtful piece fuels and enhances the important debate (noted here and here and in this Washington Post editorial) over when and how the Supreme Court should deal with Blakely issues.
UPDATE: I have hastily drafted a "response" to Ms. Lithwick's piece in which I try to explain, in Slate terms, why Blakely is such a big case. I'll make that response available when it is fit for others.
Martha, my dear...
According to this CNN report, it only took the obviously efficient US District Judge Miriam Cedarbaum a one-sentence, handwritten note to reject attempts by Martha Stewart's legal team to declare the federal sentencing guidelines unconstitutional. Here's the note, as reported by CNN:
The sentencing guidelines applicable to this case do not require any enhancement by the judge, accordingly, Blakely is not in point.
I am not sufficiently familiar with the details of Martha's prosecution to know if this is a sound legal ruling. But, as suggested here, were Martha being sentenced in the Sixth Circuit, the fact that her case apparently involves no "Blakely factors" might not matter. In any event, I would especially encourage any white-collar practioners to use the comments to discuss whether this is really as simple as Judge Cedarbaum makes it sound.
Does the "Rule of Lenity" matter in answering severability questions?
Food for thought for all of those struggling --- and who isn't? --- with tough severability questions and other challengeing issues in the aftermath of declaring at least portions of the federal (or state) guidelines unconstitutional:
Does the "Rule of Lenity" come into play when a federal court is deciding which of the "Croxford choices" to adopt after a conclusion of unconstitutionality? Does it come into play in other on-going debates over how to make sense of the post-Blakely world?
The Supreme Court in Staples v. United States, 511 U.S. 600, 619, n. 17 (1994) described the "rule of lenity" as a doctrine which provides that an "ambiguous criminal statute is to be construed in favor of the accused." Isn't the Sentencing Reform Act "ambiguous" on the question of severability?
Am I crazy here? Please use the comments to tell me if so. Thanks
Spanning the globe, Blakely style
From coast to coast, local newspapers are discovering that the Blakely decision may impact local cases. Here's just a sample of the coverage: this Cincinnati Inquirer story covers the impact of Blakely in Ohio in the wake of the Sixth Circuit's recent Montgomery decision, while this story in The Flint Journal discusses a motion made in one local case to declare the federal guidelines unconstitutional -- a motion which should be eaiser(?) for Senior US District Judge Paul V. Gadola to resolve after the Montgomery ruling (background here).
Moving south, here's a story from the Eastern Arizona Courier in which state Superior Court Judge Douglas Holt thoughtfully discusses the possible impact of Blakely and reactions thereto in Arizona. Finally, this interesting article from Myrtle Beach Online discusses Blakely's potential impact on three doctors sentenced to long federal prison terms for overprescribing narcotics. And since Myrtle Beach is the self-proclaimed "Golf Capital of the World" -- not to mention where I will be taking a family vacation in August -- I can't resist using this forum to predict that Ernie Els is the player to beat in The British Open Championship, which started today.
District Court dynamics
I have heard from many about interesting efforts by prosecutors to deal with Blakely, and about interesting responses from defense attorneys and district courts to these efforts. Though Judge Cassell's written testimony to the Senate Judiciary Committee (available here) provides the most extended account of different Blakely coping efforts, I will try to provide examples of interesting rulings that come my way. So, here I provide a copy of a recent ruling in US v. Roberts by SDNY US District Judge Lewis Kaplan --- who, by the way, I was lucky enough to have in his pre-judge days as my "partner buddy" while a summer associate at Paul, Weiss in NYC. In the attached ruling, Judge Kaplan denies the government's application to submit special interrogatories or special verdict to the jury, and here's a flavor of his reasoning:
I do assume I have discretion to bifurcate and take a second and special verdict with respect to sentencing. The question is whether I ought to do it in the exercise of discretion. The argument for doing it, it seems to me, is essentially that it is like chicken soup. It may not cure the cold but it isn't going to make it any worse [especially in a case where such an approach might be easily employed].... But at the end of the day, it seems to me that to have a system in which special verdicts would be taken on sentencing factors in simple cases but not in complicated cases is just exceptionally unfair, exceptionally undesirable and certainly not something that any policymaker to date has indicated a willingness to adopt.
In consequence, I just feel that it would not be an appropriate exercise of my discretion to start down that road by taking a special verdict in this case simply because it is a simple one and it isn't hard to do, and thus, in some way lend some credence to the notion.
The whole transcript is a valuable read, and can be downloaded here:
The Sixth Sense
M. Night Shyamalan has a new movie due out later this month, but I have come to read the Sixth Circuit's decision in Montgomery (background here) as something of a revival of his modern classic The Sixth Sense.
First, I would bet the Montgomery decision is already giving prosecutors (and perhaps other Sixth Circuit judges) nightmares. Plus, in a case apparently without upward enhancements at issue and in which Blakely was neither briefed or argued, the decision to declare the guideline only advisory in Montgomery sure was a surprise ending. And, in the end, the bold and opaque decision will likely have an effect that might even be called brooding. Here's an article discussing fallout from Blakely and Montgomery in the Sixth CIrcuit. It notes that:
Federal judges in southern Ohio were so worried about the impact of the [Blakely] decision that they declared a 30-day moratorium last week on all sentences that could be affected by the Blakely decision. Court officials say at least 100 cases have been put on hold. "There's just a lot of confusion because no one really knows what the impact will be," said Jim Higgins, executive of the 6th Circuit. "Clearly, people are searching for answers."
Second, the mantra for the Montgomery decision should be "I see dead cases." In Montgomery, Judge Gilbert Merritt places heavy relaince on 18 U.S.C. § 3553(a) when declaring the guidelines only advisory as a result of Blakely. But, over a decade ago, in US v. Davern, 937 F.2d 1041 (6th Cir. 1991), Judge Merritt forcefully argued that § 3553(a) justifies approaching the guidelines as "general principles of sentencing" in order to "transform mandatory rules into the more modest name guidelines." But his collegues before long made his ruling a dead letter by taking the case en banc and reversing it. US v. Davern, 970 F.2d 1490 (6th Cir. 1992).
More SCOTUS Scuttlebutt
Lyle Denniston, of SCOTUSblog fame, wrote to me in response to my mini-rant about the need for quick action by the Supreme Court. Here's what he had to say:
A clarification: I did not mean to suggest there was no excitement at the Court about the Blakely follow-up issues; I meant only that the 2d Circuit had stirred no excitement with its certified questions. There is a considerable difference. And the absence of a sense of crisis is normal for a Court that is constantly being bombarded with urgent requests to do something now -- on everything from Death Row reprieves to the breathless maneuverings in a case like Bush v. Gore.
One of the things I heard today was that taking on the 2d Circuit questions would only delay final resolution, perhaps by six months, and there is a keen interest in not stretching this thing out. Interestingly, we have not yet seen the calendar for October oral argument yet, and there is no reason to think that it is not done yet. The reason, I would guess, is this: it is being held up to see if space needs to be saved for a Blakely redux. The ball definitely is in Paul Clement's hands right now, but when he moves, so will the Court, and I believe quite rapidly.
Needless to say, I am very pleased to know that there is in fact a sense of urgency about all this within the Supreme Court, even if the certified case is not the route taken. And I was also pleased to discover tonight that I was in good company with my ranting. The Washington Post has this editorial running Thursday titled "A Supreme Mess" which reviews the legal confusion and concludes, "The Supreme Court made this mess, and it should be obliged to clean it up quickly." For a little fun, I encourage readers to guess in the comments the exact date when the Court will grant cert. (I'll even send a prize to anyone who guesses right, but only one guess per person, please.)
I must finally say that I find it a bit disconcerting that the Supreme Court is so unwilling to let circuit court judges help determine its docket --- as Lyle puts it, "The 'certified question' procedure has no devotees on the Court" ---while it is apparently quite willing to let its docket be shaped by the desires of the executive branch acting through the SG. Well, at least Lyle's report makes me seem clairvoyant when I previously posted that new Acting SG Paul Clement "will likely play a major role in determining when and how the Supreme Court rules on what Blakely means for the federal sentencing system."
I'm starting to think Ted Olson probably decided to retire somewhere in the middle of reading Justice Scalia's opinion in Blakely.
Coast to Coast Blakely developments in the states
In addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.
Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:
[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.
Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.
July 14, 2004
Action by the Supreme Court (of California)
Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:
In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?
My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court "abused its discretion by imposing the upper term and doubling it after refusing to" strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision's final paragraph, the lower court stated:
Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]
I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an "upper term sentence." Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law.
July 14, 2004 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (15) | TrackBack