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August 16, 2004

District judges keep up the good work

Perhaps if your surname is Holmes and you are a judge you have no choice but to perform at a high level. Whatever the explanation, Chief Judge Sven Erik Holmes of the Northern District of Oklahoma continues his impressive Blakely work through a recently entered order in US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004), which can be downloaded here:
Download us_v. Leach.pdf

The order in Leach contains all of the impressive and thoughtful reasoning set forth in Judge Holmes' decision last week in US v. O'Daniel (details here and commentary here). But Leach is a distinct and important read in part because the case involves an embezzlement offense with interesting sentencing issues relating to the scope of the crime and amount of loss. In Leach, Judge Holmes reiterates his view, based on his reading of Blakely and waiver analysis, that he can constitutionally still serve as a sentencing factfinder, but must do so using a higher evidentiary standard and with the rules of evidence in force. In other words, Judge Holmes has devised an interesting (and I think jurisprudentially sound) way to "split the Blakely baby."

As indicated at the end of the opinion, the defendant in Leach was ultimately unhappy with the outcome of Judge Holmes' Blakely baby splitting; the defendant has already announced her intention to appeal to the Tenth Circuit.

August 16, 2004 at 02:29 PM | Permalink


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How can you waive a right if you do not know that the right exists? Isn't that the essence of a knowing and voluntary waiver? Even if you give express written consent to judicial factfinding, does it make a difference that the consent/waiver predated Blakely (knowledge of the right)?

Posted by: Stanley Feldman | Aug 16, 2004 6:40:15 PM

FWIW, Judge Holmes gave the defendants in Leech and O'Daniel the opportunity to withdraw their pleas, but the defendants' did not want to go back to the status quo ante. Only after that decision did he hold them to the waiver of their rights to a jury determination of these sentencings facts. This may not change your view on the law, Stanley, but it does alter the equities a bit.

Posted by: Doug B. | Aug 16, 2004 8:25:20 PM

The offer to withdraw the plea seems more like a trick question to me. If she had gone to trial the probation officer would have still prepared a presentence report for use in the Guidelines sentencing process. The reason she wouldn't withdraw her plea is that she was probably just looking for the "coincidence of timing" benefit available (?) for a limited only in the so called "straddle" cases. She doesn't really want to contest the amount with a jury. Considering that she was stealing from a Christian charity, I would probably waive the jury anyway. Judge Holmes did give her the benefit of the higher standard of proof and it seems like he may have given her a break on the amount of loss. I do not necessarily object to judge fact finding as much I object to Congress and General Ashcroft taking away the judges ability to judge.

Posted by: Stanley Feldman | Aug 16, 2004 10:10:07 PM

I assume if the defendants had gone to trial that Judge Holmes would have offered to set aside the verdicts. I've got an unperfected case on appeal (trial followed by sharply contested sentencing factual issues) that might result in this choice. I'd be interested if anyone gets this type of opportunity (which, unlike Leech and O'Daniel, my client would probably take).

Posted by: Alex E. | Aug 17, 2004 1:52:50 PM

My last post assumes, of course, that there would be 5th or 6th amendment problems if a court empaneled a, post-Blakely, sentencing jury following a pre-Blakely jury verdict, which had not included findings on pertinent sentencing factors.

Posted by: Alex E. | Aug 17, 2004 2:32:31 PM

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