Blakely all-around

Though perhaps only defense counsel want to give the Blakely decision a gold medal, each day we have news and reports highlighting amazing Blakely gymnastics. (Sorry for the lame Olympics metaphor, but I am behind on my sports references; also I have been thinking lately that certain circuits deserve medals in the new sports of precedent dodging and opinion avoiding.)

This article highlights that a federal magistrate in West Virginia is going to dismount all incoming prisoner Blakely claims for the time being:

"The law concerning the applicability of the Blakely decision to the Federal Sentencing Guidelines is in a state of uncertainty," U.S. Magistrate Judge Mary E. Stanley wrote, putting the motions on hold. The move is in response to efforts – primarily by prisoners representing themselves – seeking to strike enhanced sentences given by judges in the U.S. District Court for the Southern District of West Virginia.... Even if it is determined that the decision applies to federal sentence guidelines, "it is not clear whether Blakely will apply to persons who were convicted and sentenced before Blakely was decided," Stanley wrote.

Meanwhile, though some prisoners may have to wait to find out whether Blakely scores a ten for them, this article documents a sentencing in Massachusetts in which Blakely affected the judging. According to the article, US District Court Judge Michael A. Ponsor imposed a sentence of only six months of home confinement in a high-profile fraud case while noting that the defendant "only escaped a 15-month sentence thanks to a U.S. Supreme Court ruling that has, at the very least, skewed federal sentencing guidelines." The article reports that Judge Posner indicated that "in a pre-Blakely universe, Anzalotti's case would have fallen squarely within the sentencing guidelines, earning him a 15-month minimum sentence."

Finally, the Blakely Blog has posted here a terrific report on the decathlon of Blakely events and insights at the NASC conference earlier this week. And that post reminds me that I've not yet shared the last set of Ron Wright's terrific reports of his impressions of the event. Here they are:

POSTS FROM RON FROM NASC
Facts at trial or after trial? Several conference participants pointed out that not all enhancement facts will be reserved for bifurcated proceedings, even if state law provides for such proceedings. Based on the Kansas experience, along with statutory enhancement facts already embedded in the state codes of other jurisdictions, practicing lawyers noted that judges often allow facts “intrinsic” to the crime to come into the prosecution’s case in chief. In these trials, the prosecution simply asks for a special interrogatory to go to the jury, asking the jurors to "check a box." On the other hand, judges tend to divert facts “extrinsic” to the crime into a separate jury proceeding. This appears to be a way to preserve the basic functionality of the limits in standard rules of evidence.

Hidden infringements on judicial authority. Several judges at the NASC conference noted several unforeseen limits on their authority in sentencing guideline systems now imposed by Blakely. Judges before this decision could override a prosecutor’s decision not to seek an enhanced sentence and impose such a sentence if he or she found the necessary facts to support the higher sentence. Because Blakely requires notice, the judge as a practical matter can no longer regulate prosecutor choices in this way.

The finding of an aggravated fact in most systems authorizes but does not compel the judge to impose the aggravated sentence. Once a jury makes such a factual finding, judges said that they will feel more pressure as a practical matter to go ahead and impose the aggravated sentence. Finally, the judges said that they might become less inclined to create new non-statutory aggravating circumstances, out of concern for how juries will carry out the factfinding in unknown territory. Similarly, the judges would be less likely to approve non-statutory aggravating circumstances if proposed by the prosecutor.

Who benefits during plea negotiations in the short run? Many practicing attorneys and commission staffers believed that Blakely increased the bargaining advantages for prosecutors. One prosecutor said that “there won’t be many cases where we won’t be able to dream up an aggravating fact if the case proceeds to trial.” Plea offers, the attorneys said, will start low and will move up to include aggravated sentences routinely. Those aggravating facts will become a part of proof at trial, normally not leading to bifurcated juries. Only the pesky academics pointed out that prosecutors always start with a low offer and request an aggravated sentence later in the process. Perhaps the point is that Blakely made prosecutors more determined in selected cases to put the most damaging evidence in front of the jury.

The simplest version of economic theory suggests (at least in the short run, before any major legislation to rework a system) that Blakely should give defense attorneys an additional procedural right to use as a bargaining chip. This presumably would result in marginally better results for defendants. One defense attorney responded to this theoretical possibility eloquently: "We still have to waive everything, including jury rights under Blakely, to get the price the prosecutor names. Nothing’s changed. Same as ever."