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February 22, 2006

Great Cunningham coverage in the Daily Journal

Thanks to this link via Howard Bashman, we can all now see Brent Kendall's fine coverage of the cert grant in Cunningham in his article entitled "Supreme Court Puts Sentencing In California on Shaky Ground" appearing today in the Daily Journal of California.  Everyone interested in Blakely issues should read the whole piece (and also my links below), but here are some highlights:

Criminal sentencing in California was thrown into a state of uncertainty Tuesday as the U.S. Supreme Court agreed to decide the constitutionality of the state's determinant sentencing law, a move that could ultimately force the state to overhaul its three-tiered sentencing system....

Veteran criminal defense lawyer Andrew M. Stein in Bellflower said a U.S. Supreme Court decision that invalidates the California system "would be chaotic." "You'd have to have a completely new and distinct system for how sentencing enhancements are pled, proven and ruled upon," Stein said. Santa Clara University law professor Gerald Uelmen is one of many legal observers who think the state Supreme Court erred in upholding the state's scheme.  "We will have a big mess to sort out" if the Supreme Court overturns that ruling, Uelmen said....

State Deputy Attorney General Jeffrey Laurence said it was not surprising that the court decided to review the state's sentencing system "in the sense that the states were going in different directions under their own sentencing schemes."  Laurence said he was looking forward to the finality a Supreme Court ruling would provide.  He added that he was confident that the state Supreme Court's Black decision would stand.

The Attorney General's Office, Laurence said, was not advocating that prosecutors make any changes to the way they approach cases while they wait for a Supreme Court ruling....  Robert Kalunian, chief deputy public defender for Los Angeles County, noted the vast majority of felony cases reach an agreed upon plea bargain and that those cases are unlikely to be affected.  As for cases that will be going to trial, Kalunian said, "If I was a judge, I would be very cautious in sentencing someone to an increased sentence without a finding of fact by the jury."  "If the California Supreme Court got it right the first time, we wouldn't be in this situation," he said.

Dwight Moore, the supervising deputy district attorney in San Bernardino County, said that in order to avoid revisiting cases if Black gets overturned, district attorneys could go ahead and ask juries to find aggravating factors.  "If it doesn't get overturned, we did some extra work, but if it does, we're covered," Moore said.  "That will be decided on a case by case, courtroom by courtroom basis." Moore said that, unlike their defense counterparts, the vast majority of prosecutors think the state court's Black decision was correct. "Every DA must be including in their prayers at night, 'Dear Lord, please let the Supreme Court let Black alone,'" Moore said.

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