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January 22, 2007

First-cut media coverage of Cunningham

Howard Bashman (who else?) already has collected lots of early media coverage of Cunningham from NPR and law.com and San Francisco Chronicle and the Los Angeles TimesAdditional coverage is flagged here at SCOTUSblog.  Let me recap my first set of posts, which have already produced lots of great comments:

January 22, 2007 at 04:18 PM | Permalink

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Cunningham, Chainsaw’s or whiteout?

The Supremes in Cunningham did not merely adjust a technical or statutory plank of the California DSL laws, it said “Jury”. Like the great Red Beckman Grand Jury afficionado says “Power is based in the hands of juries, the judge is but a referee”. Our courts have been dominated by three players in the court room game. Defense Attorneys, prosecutors and judges. 97% of all California defendant’s never reach beyond this regime.

California’s Plea Bargain paradise is in trouble. Last Monday a prosecutor could waive a threat of 10 years in hotel California or offer a 3 year half time plea and taking into consideration it’s just a overworked PD between you and upper term in San Quentin....were do I sign. But if a mid term (were Cunningham says ) max. were on the table the 10 year club is gone barring true agravating circumstances any” Jury” could find, this keeps the really bad guys on notice and the not so bad guys mid term. Now, Deal or no deal takes a real meaning.

According to California jurist prudence, Juries don’t proactivly participate in “Real” decision making. Juries are supposed to sit in waiting rooms room hours only to be begrudgingly marched into the box, obstecably to hear case s only to be inspected and rejected like so much produce. Cunningham is going to put in play the jury system like never before.

I believe Justice Ginsberg in hitting the “C” note in the A,B,C (Apprendi, Blackly, Cunningham) she is sending a indelible message th prosecutors and judges that the game is over. Slow the prosecution production line down and really put defendants on trial, a real trial.

I take Cunningham to mean to California DSL is simple. “ A judge is just a referee.” its up to the jury to digest the facts and mete out the punishment within some lose guidance from the legislators. As to plea Bargains and its retroactivity, I say if it is unconstitutional today, barring any recent changes to the 6th amendment I didn’t catch, yes it is retro up to the point of a valid Claim of Relief provable and material to the Petitioner. Parolees will shave time off there parole period by the extended time served of the upper term sentencing and some prisoners will get a year or two off, some will walk. Needless to say count on a 10 to 15 thousand Cunningham style Habeas petitions made from the inside this year.

Plea’s made with a upper term threat / Joint suspended will also fall to the Cunningham axe as being a “sentencing scheme made by the court” now Explicitly barred. Justice Ginsberg explicitly stated “Scheme” that would be any deviation from middle term sentencing determined by the court by ANY process not involving the facts found by a jury..period.

Folks, Cunningham’s not a chainsaw, it’s a full regime change.


Ron C.
In the California Supreme Court on Habeas w/ a Cunningham Defense.

Posted by: Ron Conrad | Jan 25, 2007 2:29:36 PM

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