Thursday, April 17, 2008
Washington Supreme Court rebuffs SCOTUS approach to Blakely harmless error
Nearly two years ago in Recuenco v. Washington (discussed here and here), the US Supreme Court declared that violations of Blakely rights could be subject to harmless error. Thanks to an alert reader, I learned that today the Washington Supreme Court decided in this opinion to reject the application of harmless error in this context as a matter of state law. Here is the start and end of the opinion:
This case asks us to determine whether Washington law requires a harmless error analysis where a sentencing factor, such as imposition of a firearm enhancement based on a deadly weapon finding, was not submitted to the jury. The United States Supreme Court in Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), held that Blakely errors can be subject to harmless error analysis. We conclude that under Washington law, harmless error analysis does not apply in these circumstances. On remand, we affirm State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), and remand to the trial court....
Recuenco was charged with assault with a deadly weapon enhancement, and he was convicted of assault with a deadly weapon enhancement, but he was erroneously sentenced with a firearm enhancement. We conclude it can never be harmless to sentence someone for a crime not charged, not sought at trial, and not found by a jury. In this situation, harmless error analysis does not apply. Therefore, we vacate the firearm sentence and remand for correction of the sentence.
Wednesday, January 10, 2007
What can we make of Justice Scalia's take on structural/harmless errors?
New Jersey lawyer Steven Sanders, who has long been thoughtfully examining the issue of how to deal with Blakely errors, sent me this thoughtful comment about Justice Scalia's curious work yesterday in his dissent in United States v. Resendiz-Ponce:
The Apprendi line of cases has seen its share of side-switching or seemingly contradictory votes by Supreme Court justices, usually without explanation. For example, Justice Thomas has publicly stated that Almendarez-Torres v. United States should be overruled, admitting in the process that he voted for the wrong side. Similarly, Justice Scalia is the only justice to vote with the majority in both Apprendi and Harris v. United States. Finally, Justice Ginsburg voted to join both majority opinions in United States v. Booker.
Yesterday, Justice Scalia dissented in United States v. Resendiz-Ponce and stated that he would deem the indictment-omission error he thinks occurred in that case structural, citing to his dissent in Neder v. United States. In Neder, the majority said that withholding an essential element from a petit jury is not structural and is amenable to harmless-error review. Justice Scalia disagreed, and so his pronouncement that an indictment's failure to allege an essential element is also structural error ought not to surprise us. The only problem is that in June 2006, Justice Scalia voted with the majority in Washington v. Receunco, which, relying heavily on Neder's majority opinion, concluded that a jury's failure to determine a sentence-enhancing fact, in violation of Apprendi's holding, is amenable to harmless-error review. This would suggest that Justice Scalia distinguishes between essential crime elements and sentence-enhancing (or "Apprendi") elements for purposes of determining whether a Sixth Amendment error is amenable to harmless-error review.
One possible explanation for these seemingly inconsistent votes is that Justice Scalia's Neder dissent did note that, despite labeling the error "structural," an appellate court could vote to affirm if it were satisfied beyond a reasonable doubt that the jury had necessarily found the omitted fact in reaching its verdict. In Recuenco, there is almost no doubt that that's what occurred. But the Court, following its usual practice in cases emanating from state courts, vacated the judgment and remanded to the Washington Supreme Court so that the state court could perform the harmless error analysis in the first instance. Could it be that Justice Scalia agreed with the ultimate result in, but not the reasoning of, Recuenco and chose not to write a concurring opinion to make that clear?
Monday, June 26, 2006
Why Recuenco could be good news for Blakely fans
Some fans of Blakely might be bummed that the Supreme Court today in Recuenco (discussed here) declared that violations of Blakely rights could be subject to harmless error. But I see a very important silver lining in Recuenco: the opinions and the voting pattern in Recuenco suggest to me that the main consequence (and goal?) of the opinion will be to make it much easier for the Court to feel comfortable expanding Blakely rights in the future.
By voting to limit the potential consequences of future Blakely rulings through Recuenco, three of the Blakely five — Justices Scalia and Souter and Thomas — have ensured that the entire Court can feel more at ease when deciding whether to expand Blakely rights in later cases. Of course, the Court already has two big Blakely cases on its docket: (1) Cunningham, which addresses Blakely's applicability to California's sentencing system, and (2) Burton, which addresses whether Blakely is to be applied retroactively.
The opinion in Recuenco provides no reason to believe that Justice Scalia (the author of Blakely) and Justice Souter (the author of Jones) or Justice Thomas (the author of strong separate opinions calling for Blakely's extension in Harris and Shepard) are not still strong believers in Blakely principles. In fact, that these three Justices are all in the majority in Recuenco — and that Justice Thomas authored the opinion and included some loose pro-Blakely language — leads me to (naively?) view the defendant's loss in Recuenco as setting up some more important Blakely wins next term.
A few quick thoughts on Recuenco
A quick read of the Supreme Court's Blakely work in Recuenco (opinion here) provides a lot of interesting tea leaves to read. Here are just a few quick observations, with more commentary to follow later:
1. The court's decision was on a 7-2 vote, with only Justices Stevens and Ginsburg dissenting. Perhaps the most surprising (silent) member of the majority is Justice Scalia, who was the author of Blakely and a vocal dissenter in the key precedent that the majority relies upon to declare that Blakely errors can be harmless (this post details Justice Scalia's prior assertions that jury trial errors should be seen as structural).
2. Justice Thomas' opinion has some broad language about "sentencing factors" that might be read — and certainly could be misconstrued — to extend the reach of Blakely. See Recuenco, slip op. at 6 ("we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt"); id. at 7 (discussing the Court's "recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes"). Both of these assertions — which carry seven votes, including those of the two new Justices — raise the stakes on what exactly counts now as a "sentencing factor."
3. Justice Kennedy writes an opaque little separate concurrence which seems to signal that he still does not accept Apprendi and Blakely. Notably, Justice Breyer does not sign on to this tea leaf concurrence (nor does, for that matter, Justices Alito and CJ Roberts).
4. The author of the main dissent on the merits is Justice Ginsburg, who writes as if she was the strongest believer in the full panoply of Blakely rights. But, as the majority-jumping Justice in Booker who allowed for federal defendant to have their procedural rights at sentencing gutted, I am surprised she is a vocal dissenter here. Might this dissent signal that she is disappointed with how the post-Booker world is unfolding?
Tuesday, June 20, 2006
A closer look at Recuenco
I am somewhat surprised that, as the Supreme Court Term winds down, that we have still not yet seen an opinion in the Blakely error case of Washington v. Recuenco (background here). Perhaps the Justices have been astutuely awaiting the publication of an article by Steve Sanders on the case, entitled "A Closer Look at Washington v. Recuenco," in the forthcoming issue of the Federal Sentencing Reporter. Fortunately, the wait is over, because I can now provide a proof of the article for downloading below. Here is how it starts:
Last year, the Supreme Court granted certiorari to decide whether violations of the Sixth Amendment's jury-trial right, as articulated in Blakely v. Washington, are structural error, requiring automatic reversal. In an earlier article I explain why Recuenco presents a substantial federal question for the Supreme Court's resolution. That article also suggests that Recuenco presents a "perfect vehicle" for resolving the question presented because the Washington Supreme Court would be free to affirm Recuenco's enhanced sentence were the U.S. Supreme Court to conclude that Blakely errors do not require automatic reversal. This article elaborates on that critical assumption and highlights an issue that, although not addressed by the parties, may require the Supreme Court to fine-tune its harmless-error jurisprudence to accommodate Blakely-type claims.
Friday, May 05, 2006
SCOTUS argument transcript for Recuenco
The last person closely watching the Supreme Court doings in the Blakely error case of Washington v. Recuenco (No. 05-83) was kind enough to let me know that the transcript from last month's oral argument is now available at this link. I fear I may not get a chance to read and comment on this transcript anytime soon, but readers are encourage to compare the actual argument transcript to my coverage in prior posts linked below:
Recent related Recuenco coverage:
- Recuenco oral argument report
- If a Blakely case is argued in the woods...
- Recuenco basics
- Why Recuenco is a big little Blakely case
- O Recuenco, Recuenco, wherefore art thou granted Recuenco?
- Recuenco post archive
Tuesday, April 18, 2006
If a Blakely case is argued in the woods...
and no one reports on it, does it make precedent?
Sorry for the silly metaphysical question, but I am a bit stunned that I cannot find a single press account or any other kind of coverage of the Supreme Court oral argument yesterday in Washington v. Recuenco (No. 05-83). Even the folks at SCOTUSblog did not even bother to provide a preview of the case (as seems to be their custom for all SCOTUS cases) the time to mention Recuenco.
Because the issues in Recuenco concerning the nature of Blakely errors are opaque and perhaps of limited significance, I did not expect the Recuenco oral argument to get a lot of attention. But now I am thinking Recuenco might set some sort of record for least-discussed Supreme Court case.
Recent related Recuenco coverage:
- Recuenco oral argument report
- Recuenco basics
- Why Recuenco is a big little Blakely case
- O Recuenco, Recuenco, wherefore art thou granted Recuenco?
Monday, April 17, 2006
Recuenco oral argument report
Thanks to a number of helpful attendees, I have heard a few reports concerning this morning's oral argument in Washington v. Recuenco (No. 05-83). Based on these reports, I no longer think Recuenco is likely to turn out to be a big little Blakely case. Apparently, the Justices spent a lot of time trying to sort through the particulars of Washington state law, and that fact alone might suggest that the Court could possibly decide to DIG the case.
Even if the case is not sent packing through a DIG, the peculiar case facts in Recuenco may entail a relatively narrow (and thus relatively unimportant?) ruling. When not debating Washington law, the Justices were apparently concerned with indictment and notice issues; they did not cleanly focus on the big issue of whether clear Blakely sentencing errors ought to be subject to harmless error treatment.
Of course, these are second-hand reports of the argument, and I may have more tea leaves to read once I have a chance to review the official transcript in the days ahead.
As detailed in this recent post, the Supreme Court today starts a criminal-case-heavy session with arguments this morning in Washington v. Recuenco (No. 05-83). Recuenco will explore whether Blakely errors can be subject to harmless-error analysis or instead are structural errors. I have here described Recuenco as a big little Blakely case, and my numerous prior posts about the case are assembled in this archive.
For more basic background on the facts and issues in Recuenco (as well as links to the parties' briefs), check out this account of the case from the Medill folks at Northwestern. In addition, the folks at Cornell Law School have this effective write-up of the Recuenco case that also includes a discussion and analysis section.
Thursday, April 13, 2006
Recuenco and the complicated interplay of error
In this recent post, I noted that on Monday the Supreme Court will finally hear argument in Washington v. Recuenco (docket 05-83) to explore whether Blakely errors can be subject to harmless-error analysis or instead are structural errors. I also detailed reasons why a seemingly little Blakely issue could still makes for a big case in Recuenco. (Most Recuenco posts are assembled in this archive and highlights are linked in this post.)
A key point for the intersection of Blakely issues and error review issues in Recuenco is that the defendant preserved his jury trial claim and thus the case does not directly implicate any plain error doctrines relating to unpreserved claims. However, a ruling in Recuenco still could impact some Blakely/Booker plain error litigation; there is a complicated interplay between harmless/structural error doctrines and plain error doctrines.
To better understand this interplay, I asked a top-shelf research assistants to try to unpack how Recuenco might impact plain error issues. My terrific RA produced two brilliant documents: (1) a cogent memo walking though these error issues, and (2) a detailed appendix assembling Booker plain error doctrines as developed by the federal circuit courts. Both great documents are provided for download below:
Monday, April 10, 2006
Why Recuenco is a big little Blakely case
After granting cert way back in October, next Monday the Supreme Court will finally hear argument in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis or instead are so-called structural errors. The intersection of Blakely issues and appellate review issues makes Recuenco hard to unpack easily, but I hope to provide in the week ahead some detailed coverage of what to expect in Recuenco. In this first post, I wanted to note some reasons why a seemingly little Blakely issue still makes for a big (and messy?) case in Recuenco:
1. Justice Scalia, as detailed here, has long been a vocal advocate against harmless-error review in the context of Sixth Amendment jury trial violations. It will be interesting to see not only if Justice Scalia sticks to his guns in Recuenco, but also if he might brings new Justices Alito and Roberts along for the ride.
2. Recuenco, though a state case, could in various ways impact a range of Booker and post-Booker appellate review issues in the federal courts. (In a future post, I will cover more fully the very complicated intersection of harmless/structural error doctrines and plain error doctrines.)
3. Especially with the prior conviction and mandatory minimum exceptions to Blakely on seemingly shaky ground, a ruling in Recuenco could greatly impact the ripple effect of any future expansions of Blakely.
4. As hinted in point 1, Recuenco is the first opportunity for Chief Justice Roberts and Justice Alito to weigh in (or not weigh in) on the Supreme Court's Apprendi-Blakely-Booker Sixth Amendment jurisprudence. Especially with many other Blakely-Booker issues on the Court's horizon, Recuenco should provides some valuable tea leaves for reading about the new justices' take on the Sixth Amendment.
Most of my Recuenco posts are assembled in this archive, and here are highlights of the basics:
- SCOTUS taking up Blakely harmless error issue!
- O Recuenco, Recuenco, wherefore art thou granted Recuenco?
- Sorting through Blakely error and Recuenco
- Justice Scalia on Sixth Amendment errors as structural
Friday, February 10, 2006
Sorting through Blakely error and Recuenco
I have be wailing for a long time about the many post-Blakely and post-Booker questions that I think merit the Supreme Court's attention (which in part accounts for my kvetching again and again about SCOTUS taking so many death penalty cases). Thus, you'd think I'd be happy that SCOTUS, as detailed in a series of posts from last October (here and here and here), granted cert in Washington v. Recuenco to explore whether Blakely errors can be subject to harmless-error analysis. However, because of the nature of the Recuenco issue and its procedural posture, it seems that SCOTUS has selected a case (from a cert pool filled with many pressing Blakely/Booker issues) that could engender more confusion than clarity.
Recuenco could make the post-Blakely world even messier because the defendant's brief (available here) argues that harmless-error review "is impossible here because of an unusual circumstance under state law." In other words, the defendant (who prevailed below) seems to be contending that the Supreme Court ought to just dismiss Recuenco as improvidently granted. And, because the defendant has uber-SCOTUS-litigant Jeff Fisher on his team, one can expect the Court will give careful consideration to the idea that it ought to just make the case go away.
"But not so fast," says Steven Sanders in a forthcoming article in the New Jersey Lawyer, which carries the terrific title "Is Washington v. Recuenco a Big Fat Dud?". Steve argues in this article that any argument suggesting that SCOTUS "should decline to resolve a question of immense importance to prosecutors and defense attorneys alike ... is fundamentally misguided." Available for download below, Steve's short article provides a useful primer on Recuenco and leads me to the conclusion that, no matter what SCOTUS does, the case could well engender even more post-Blakely confusion.
UPDATE: Steve has produced a slightly revised version of his article (as of Feb. 17, 2006), which is available below:
Monday, January 23, 2006
Looking ahead to SCOTUS Blakely action
As detailed over at SCOTUSblog, there wasn't any notable sentencing action in the Supreme Court's work today and now the Court goes into recess for four weeks. Not only does this schedule allow everyone plenty of time to enjoy SuperBowl hype, it also provides time to gear up for the notable Blakely action that will be on tap when the Justice get back to work. Specifically, there are at least two big Blakely stories that will unfold in the coming months:
- As shown from this docket sheet, the Gomez case from Tennessee (background in this post) is scheduled for its third SCOTUS conference on February 17. And, intriguingly, a number of the Blakely cases coming from California will also be conferenced that day, as revealed by docket sheets in Black, Cunningham, Diaz, and Harless. Consequently, by the second half of February, we ought to have some new information and insights concerning whether, when and how the Supreme Court may examine state sentencing systems that have elided Blakely.
- A bit of Blakely March madness will develop around the Supreme Court's consideration of Washington v. Recuenco (docket 05-83), which concerns whether Blakely errors can be subject to harmless-error analysis. Though not yet officially scheduled, Recuenco will likely be argued in the second half of March. I provided some coverage of Recuenco back in October when cert. was granted, and I plan to discuss the case a lot more as oral argument approaches.
Folks interested in these and other state Blakely stories should be sure to check out this recent issue of the Federal Sentencing Reporter, which provides thorough and thoughtful coverage of the state of Blakely in the States. More background on that issue is available at this post.
UPDATE: Based on this post about the argument schedule at SCOTUSblog, it now appears that Recuenco won't be argued until April (even though cert. was granted well before some of the cases now scheduled to be argued in March). Hmmmm.
Thursday, October 27, 2005
A state perspective on harmless error
As discussed in a series of recent posts (here and here and here), the US Supreme Court has granted cert in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis. In an interesting article in the New Jersey Law Journal, Steven Sanders relies on the New Jersey Supreme Court's handling of Blakely issues to argue that, even if federal constitutional law is interpreted to permit Blakely errors to be subject to harmless-error analysis, state courts can still as a matter of state law hold that such errors require automatic reversals. Here is part of the article's introduction:
Relying on basic federalism principles, this article explains why state courts are not obligated to obey a federal law of remedies in adjudicating federal constitutional violations and why state courts have every right, as a matter of state law, to remedy a federal constitutional violation that a federal court would find harmless.
Tuesday, October 25, 2005
Cert briefing in Recuenco on nature of Blakely error
As first noted in this post, last week the Supreme Court granted cert in Washington v. Recuenco (docket 05-83) in order to explore 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). As spotlighted in subsequent posts and comments here and here, there are many intriguing aspects of the High Court's decision to take up this issue and to use Recuenco as its vehicle.
To help fill out this story and enhance my own understanding of this fascinating little case, I have obtained copies of the cert briefing in Recuenco. Three briefs — the state's petition for cert, the defendant's brief in opposition and the state's reply — are available for download below. I hope to have some more comments about the dynamics and the stakes of Recuenco after I get a chance to review and contemplate these briefs.
Tuesday, October 18, 2005
Justice Scalia on Sixth Amendment errors as structural
The Court's fascinating and important decision to grant cert in Recuenco to consider whether Blakely error can be harmless (basics here, commentary here) has led me to go back and re-read Neder v. US, 527 U.S. 1 (1999) (available here) and Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here), which are two critical precedents for the ultimate resolution of Recuenco. Both cases are fascinating reads, in part because of the sparring between Chief Justice Rehnquist and Justice Scalia and because of Justice Scalia's obvious distain for harmless-error review in the context of Sixth Amendment jury trial violations.
Recuenco is especially fascinating because, with the loss of CJ Rehnquist's competing voice, Justice Scalia is the only current Justice who has written opinions on these issues. And, for that reason and others, I cannot resist quoting some especially choice passages from Justice Scalia's dissent in Neder:
When this Court deals with the content of [the jury trial] guarantee — the only one to appear in both the body of the Constitution and the Bill of Rights — it is operating upon the spinal column of American democracy....
Even if we allowed (as we do not) other structural errors in criminal trials to be pronounced "harmless" by judges ... it is obvious that we could not allow judges to validate this one. The constitutionally required step that was omitted here is distinctive, in that the basis for it is precisely that, absent voluntary waiver of the jury right, the Constitution does not trust judges to make determinations of criminal guilt. Perhaps the Court is so enamoured of judges in general, and federal judges in particular, that it forgets that they (we) are officers of the Government, and hence proper objects of that healthy suspicion of the power of government which possessed the Framers and is embodied in the Constitution. Who knows? — 20 years of appointments of federal judges by oppressive administrations might produce judges willing to enforce oppressive criminal laws, and to interpret criminal laws oppressively — at least in the view of the citizens in some vicinages where criminal prosecutions must be brought. And so the people reserved the function of determining criminal guilt to themselves, sitting as jurors. It is not within the power of us Justices to cancel that reservation — neither by permitting trial judges to determine the guilt of a defendant who has not waived the jury right, nor (when a trial judge has done so anyway) by reviewing the facts ourselves and pronouncing the defendant without-a-doubt guilty. The Court's decision today is the only instance I know of (or could conceive of) in which the remedy for a constitutional violation by a trial judge (making the determination of criminal guilt reserved to the jury) is a repetition of the same constitutional violation by the appellate court (making the determination of criminal guilt reserved to the jury).
Of course, five Justices rejected these sentiments in Neder. But, two of those five (Rehnquist and O'Connor) will not be involved in resolving Recuenco. And another Justice in the Neder majority, Justice Thomas, seems to be a much bigger fan of jury trial rights now than he was in 1999.
Monday, October 17, 2005
SCOTUS taking up Blakely harmless error issue!
Though I won't credit all my whining about the need for the Supreme Court to start addressing all the important issues left unresolved by Blakely and Booker (see, e.g., here and here), I will celebrate the big news coming from Lyle Denniston at SCOTUSblog that the Court today granted cert in "a significant sequel to its series of rulings on the roles of judges and juries in criminal sentencing" by accepting for review "the issue of whether a violation of the jury's role in sentencing can ever be excused as 'harmless error.'"
The case taken up by SCOTUS is Washington v. Recuenco (docket 05-83). The decision by the Washington Supreme Court was rendered in April and is available here. I reported on the decision in this post.