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January 23, 2005

Blakely news and Booker insights from the states

Through a recent series of posts (here and here and here), I have been trying to keep the spotlight on the state Blakely story even though there is so much happening on the federal front.  Fortunately, there are terrific lawyers working on Blakely issues in particular states who make it much easier for me to keep track of state developments.

For example, in California, the First District Appellate Project continues to do an amazing job tracking Blakely in California at this site.  And now available from FDAP is this fantastic memo from J. Bradley O'Connell entitled "Blakely and Booker in California: the Next Generation." Though this detailed 15-page memo will be of most interest to California lawyers, its discussion of matters like the prior conviction exception and harmless error should be of interest to all lawyers (but not Star Trek fans) trying to figure out Booker and litigating Blakely issues nationwide.

Similarly, from Tennessee, I have received an interesting report via e-mail from self-described country lawyer David Raybin, which he entitled "Tennessee Blakely Activity: Music to My Ears."  Here is that report:

As of January 22, 2005 Blakely activity in Tennessee is as follows: We have a presumptive sentencing scheme. Our intermediate appellate court has held that — except for prior convictions —no enhancement factor can apply and thus the defendant should receive the presumptive sentence in each range. Our sentences are pretty stout anyway so it is not too much of a problem. Our Supreme Court heard expedited arguments in a Blakely-type case in January. Supplemental briefs are to be filed around Valentine's day. State v Gomez, 2004 WL 305787 (Tenn.Crim.App.), appeal granted Oct. 4, 2004. (I represent a co-defendant in a trailing appeal).

Meanwhile, the Governor’s Commission — I am serving as an adviser — has a meeting on February 4, 2005 to formulate our final recommendation for remedial legislation.  We are down to: (1) a totally discretionary structure — what I call "free fall"  — (2) a bifurcated jury structure — which some judges oppose because of the extra time for the jury, and (3) an "advisory" guidelines system with some fairly strong guidelines — which the law professors are eying to see if it is Booker-compliant.  Our superb Chairperson, Judge Barbara Haynes is politically savvy — her husband is a State Senator — so I think we will have unanimity as to which road to take.  Our various drafts are not unmindful of retroactively and "pipeline" application issues, something I notice that other states have not always addressed in their legislative proposals.  Stay tuned.

January 23, 2005 at 08:22 AM | Permalink

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