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July 15, 2004

District Court dynamics

I have heard from many about interesting efforts by prosecutors to deal with Blakely, and about interesting responses from defense attorneys and district courts to these efforts. Though Judge Cassell's written testimony to the Senate Judiciary Committee (available here) provides the most extended account of different Blakely coping efforts, I will try to provide examples of interesting rulings that come my way. So, here I provide a copy of a recent ruling in US v. Roberts by SDNY US District Judge Lewis Kaplan --- who, by the way, I was lucky enough to have in his pre-judge days as my "partner buddy" while a summer associate at Paul, Weiss in NYC. In the attached ruling, Judge Kaplan denies the government's application to submit special interrogatories or special verdict to the jury, and here's a flavor of his reasoning:

I do assume I have discretion to bifurcate and take a second and special verdict with respect to sentencing. The question is whether I ought to do it in the exercise of discretion. The argument for doing it, it seems to me, is essentially that it is like chicken soup. It may not cure the cold but it isn't going to make it any worse [especially in a case where such an approach might be easily employed].... But at the end of the day, it seems to me that to have a system in which special verdicts would be taken on sentencing factors in simple cases but not in complicated cases is just exceptionally unfair, exceptionally undesirable and certainly not something that any policymaker to date has indicated a willingness to adopt.
In consequence, I just feel that it would not be an appropriate exercise of my discretion to start down that road by taking a special verdict in this case simply because it is a simple one and it isn't hard to do, and thus, in some way lend some credence to the notion.

The whole transcript is a valuable read, and can be downloaded here:
Download kaplan_sdny_blakely_ruling.wpd

July 15, 2004 at 09:05 AM | Permalink


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I'm not sure if this is the proper post to append this comment to, but I didn't want to clog your inbox with it. I have been thinking a lot about habeas corpus and Blakely, even assuming its holding doesn't apply retroactively. One of your regular commenters has mentioned parole a few times -- will we start seeing 28usc2241 petitions claiming the petitioner is now eligible for parole because the Guidelines are gone? I think we're obviously going to see a spate of ineffective assistance of counsel claims. Also, claims that a guilty plea was unknowing because the defendant would have opted for trial if he had known about Blakely. I'm an appellate staff attorney, so I won't see these until the district courts have had them -- any ideas how willing the district courts will be to grant habeas relief on any of these roundabout claims?

Posted by: Milbarge | Jul 15, 2004 9:30:17 PM

I'm just a concerned fiance' who has been trying to get general information about the nera act and 28usc2241 rule. My fiance was incarserated back in 1997 and was not advised of the 85% law unti1 3 months prior to his release in 2003. He is now back in jail and he want's to appeal both the nera act(which he's never appealed) and his new charge which was remanded back to superior court for a concurrent sentence verses a consecutive sentence. Please shed some light on the new laws and commentaries.

Posted by: Nancy | Jun 25, 2007 4:05:14 PM

I'm not sure if this is the proper post to append this comment to, but I didn't want to clog your inbox with it.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:11:34 AM

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