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October 17, 2005

O Recuenco, Recuenco, wherefore art thou granted Recuenco?

The Supreme Court's cert. grant in Washington v. Recuenco has me in a Shakespearian mood as I try to figure out exactly why the Court decided its next foray into Apprendi-land should involve the intricate issue of whether Blakely errors can be subject to harmless-error analysis under Neder v. US, 527 U.S. 1 (1999) (available here) or instead qualify as structural errors under Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here).  The easy answer to why Recuenco, I suppose, is that the lower courts have split on this question, with most courts applying harmless-error analysis, but a few state supreme courts concluding that Blakely errors are structural.  And, since Washington has taken the structural error approach (along with North Carolina and maybe New Jersey), one might also speculate that at least four Justices think the Washington Supreme Court is wrong on the merits and this issue needs to be cleaned up.

But the decision to grant cert in Recuenco is not that simple and the case has intricacies that may entail another complicated and opaque chapter in the Apprendi-Blakely saga.  First, as commentor DEJ notes here, this Blakely harmless/structural error issue could have a profound impact on the Booker plain error story (and some may even claim that Booker itself indirectly resolved this issue).  Second, Washington's statutory law and the exact posture of this case on appeal suggests that Recuenco is not the ideal vehicle for sorting through these harmless/structural error issues.  Third, given the current SCOTUS sentencing head-count on Apprendi-Blakely issues, as well as Justice Scalia's vocal advocacy against Sixth Amendment harmless-error analysis and the presence of new Justices, all bets are off concerning the ultimate outcome in Recuenco.

To close with more of the Bard, I am now worried that the disposition of Recuenco might come to resemble a SCOTUS tale along the lines of A Midsummer Night's Dream or Twelfth Night.

October 17, 2005 at 06:13 PM | Permalink

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Comments

As for this observation -- "First, as commentor DEJ notes here, this Blakely harmless/structural error issue could have a profound impact on the Booker plain error story (and some may even claim that Booker itself indirectly resolved this issue)" -- I have this response:

Didn't the SCOTUS in US v. Cotton assume that the first three prongs of the plain error test were satisfied due to the Apprendi error, but nevertheless exercised its discretion to decline to afford a remedy under the fourth prong? In fact, the SCOTUS may have mentioned that the Apprendi violation was a structural error, proving how important it is to lodge a proper objection to a Sixth Amendment violation in federal court.

Posted by: Steve | Oct 17, 2005 6:29:33 PM

No, Steve. The Supreme Court in Cotton (for which I co-authored the NACDL amicus brief) held (not merely assumed) that there was constitutional error (life sentences imposed when under the indictment and jury instructions, 20 years was the max) and that the error was obvious (in light of Apprendi). It then "assumed" that this error affected the defendants' "substantial rights." The Court went on, however (unanimously, I'm sorry to say) to hold that this error did create a miscarriage of justice under the fourth, discretionary prong of the plain error rule, because the record was clear beyond any doubt that the true and undisputed quantities of drugs involved would authorize life sentences under the statute and demanded life sentences under the Guidelines (pre-Booker, remember). I don't believe the Supreme Court has ever addressed the interplay between the "structural error" concept and the "plain error" rule.

Posted by: Peter G | Oct 17, 2005 9:53:22 PM

I rechecked Cotton, and Peter is correct that the Court only referred to the parties' arguments about the error being structural (or not). But we know one thing from Cotton: Justcie Scalia, who dissented in Neder (believing that element omission was structural error) joined the unanimous Court in Cotton (omission of sentence-enhancing element not plain error). So it would seem that Justice Scalia sees a critical distinction between preserving and not preserving an Apprendi claim.

Posted by: Steve | Oct 18, 2005 10:00:57 AM

Steve, you should definitely check out Scalia's Neder dissent, where he even more clearly spotlights that plain error issues are distinct from harmless/structural error issues.

Posted by: Doug B. | Oct 18, 2005 10:28:17 AM

Doug,

I rechecked Scalia's Neder dissent, tackles this issue head on in response to criticism from Justice Stevens, and it makes me really hope -- assuming that Recueno doesn't turn out to be a total dud -- that Justice Scalia authors the opinion for the Court either way.

Posted by: Steve | Oct 18, 2005 11:25:04 AM

I think it is not really surprising that the harmless error case was chosen because of the vocal position of Justice Scalia and the death of Chief Justice Rehnquist, Scalia may have the votes to undo some of the harmless error perniciousness. At a minimum, I would imagine Scalia got Thomas and Ginsburg on board for the cert, likely tempting Kennedy. Stevens has a mixed history on harmless error, but would likely back Scalia's position in this case. If Scalia can convince Kennedy or Breyer, he may have the votes despite what new Chief Justice Roberts thinks and the presence or absence of O'Connor. Very interesting head counting...and here is hoping that the Court finally puts the brakes on this awful doctrine that lacks any basis in the Constitution (see my articles in Criminal Justice some years back for more detail).

Posted by: Jason Marks | Oct 19, 2005 12:06:02 PM

I think it is not really surprising that the harmless error case was chosen because of the vocal position of Justice Scalia and the death of Chief Justice Rehnquist, Scalia may have the votes to undo some of the harmless error perniciousness. At a minimum, I would imagine Scalia got Thomas and Ginsburg on board for the cert, likely tempting Kennedy. Stevens has a mixed history on harmless error, but would likely back Scalia's position in this case. If Scalia can convince Kennedy or Breyer, he may have the votes despite what new Chief Justice Roberts thinks and the presence or absence of O'Connor. Very interesting head counting...and here is hoping that the Court finally puts the brakes on this awful doctrine that lacks any basis in the Constitution (see my articles in Criminal Justice some years back for more detail).

Posted by: Jason Marks | Oct 19, 2005 12:06:45 PM

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