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October 30, 2007

A guide to Apprendi issues for courtroom practitioners

Bruce Cunningham, Heather Rattelade and Amanda Zimmer have a new article (available here from SSRN) entitled "Apprendi/Blakely: A Primer for Practitioners." Here is the abstract:

The purpose of this article is to explore some of these complex Apprendi/Blakely issues in a manner which is useful for the courtroom practitioner.  The implications of Apprendi/Blakely are largely uncharted territory and some of the opinions expressed in this article have not been addressed by any appellate court. In some instances, there are North Carolina appellate decisions which the authors contend are inconsistent with the basic premise of the Sixth Amendment line of cases.  The article is intended to broaden the view of Apprendi/Blakely to include concepts that extend far beyond sentencing.

The article is divided into three parts and is geared toward the trial, appellate, and postconviction lawyer. Part I is devoted to a discussion of the historical context of Apprendi/Blakely and the basic conceptual underpinnings of the Supreme Court's Sixth Amendment line of cases.  Part II presents a framework for analyzing Apprendi/Blakely issues arising under the Structured Sentencing Act.  Part III, appearing in a later volume of the North Carolina Central University Law Journal, will deal exclusively with capital litigation and the Sixth Amendment line.

In an e-mail to me, one of the authors has said: "I hope some trial lawyers from the Blakely compliant states will comment."

October 30, 2007 at 01:20 PM | Permalink

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Comments

I was hoping that the article would do more than just discuss sentencing.

Posted by: S.cotus | Oct 30, 2007 2:57:49 PM

s.cotus, thanks for your comment. I want to
respond to your concern that the you hoped
"the article would do more than just discuss
sentencing."

We believe that we didn't talk about sentencing
at all. But instead, we try to convince people
that Apprendi is, as Justice Thomas says,about
what a crime is. Our view is summed up on
page 6. "Apprendi and Blakely set forth a
simple proposition: the Sixth Amendment
prohibits a bench trial for a greater crime
after a jury trial for a lesser crime."

I believe that Apprendi Blakely basically
told states like NC that "you may think
you enacted a sentencing statute, but you
didn't. You enacted new crimes."

thanks, bruce

Posted by: bruce cunningham | Oct 30, 2007 3:59:10 PM

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