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August 5, 2004

Blakely-coping, California style

As if the day was not already mind-boggling enough, a reader from California was kind enough to send along news of this startling Standing Order that was recently entered by the Fifth District California Court of Appeal. The Order clearly is an effort to cope with (or perhaps just duck) Blakely issues until the California Supreme Court addresses Blakely's California meaning in two cases already slated for review. (Those two California cases are People v. Towne (background here), and People v. Black (background here). Here's the full text of the Standing Order:

Effective August 3, 2004, this court will no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington (2004), pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182).

However, if counsel or appellant wishes to raise a Blakely issue in any case pending before this court, he or she may file a letter stating with precision the Blakely issue[s] he or she wishes to raise on the appellant’s behalf and this court will deem such issue[s] raised, thereby preserving the appellant’s ability to seek review of the issue[s] in the California Supreme Court. The failure to identify an issue by a letter will operate as a waiver. The People, through the Attorney General, need not file any response to such a letter statement and the court will deem the stated issue[s] to be opposed by the People.

The Court may request further briefing in any case and will reevaluate this order after the California Supreme Court rules in Towne and Black. This order does not apply to any pending appeal in which this court has ordered or authorized, on or before August 2, 2004, specific briefing on a Blakely issue. The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.

Dated: August 2, 2004

I am not sure whether to decry this order as unconstitutional or praise it as brilliant. It does reinforce for me the enormous challenges courts face trying to sort compelling Blakely claims from frivolous ones. I am not sure this Standing Order — with its slightly hidden "waiver" threat — is a sound (or even legally permissible) sorting mechanism. But I am not surprised to see a court looking for life preservers in the face of a tidal wave of Blakely claims.

August 5, 2004 at 08:33 PM | Permalink


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It is troubling that this order is directed only at appointed appellate counsel.

Retained appellate attorneys remain free to vigorously and fully reasearch and brief Blakely issues, and to be compensated for their efforts in this regard.

Doesn't this smack of an equal protection violation? Doesn't this order give rise to a stifling and chilling effect --- discouraging appointed appellate counsel from creatively seeking to push the outer bounds of Blakely jurisprudence? Isn't this order inviting ethical violations, by discouraging vigorous representation of the interests of the clients of the affected appointed counsel?

In California, the intermediate level court of appeal is divided into 6 districts. This order is out of the 5th district, which is centered in Fresno. (The 5th is the district out of which the Black case came --- which is now before the Calif. Supreme Court on discretionary review.) Apparently, appointed appellate lawyers in the other 5 districts (centered in L.A., S.F., Sacramento, San Jose, and San Diego) remain free to work diligently on Blakely issues and to be compensated for their work. Shouldn't the various districts of the intermediate level court of appeal in California be speaking with a unified voice on a subject of this nature?

Review was granted in Towne and Black on only a limited number of Blakely issues, albeit highly significant issues: TOWNE ([1] whether Blakely prohibits the imposition of upper terms in California's triad sentencing system, based upon judicial fact-finding {under the preponderance standard} that aggravating factors outweigh mitigating factors; [2] whether Blakely issues are waived if not raised below; and [3] whether Blakely error is prejudicial) BLACK ([1] the same upper-term issue as in Towne, and [2] whether Blakely prohibits the imposition of consecutive sentences based upon judicial fact-finding).

Of course, as revealed by the ever-burgeoning world of post-Blakely jurisprudence and scholarship, the issues up for review in Towne and Black represent only a small constellation of the constitutional sentencing issues in the expanding Blakely universe of issues. This standing order from the 5th district does not make good sense, because, inter alia, it correlates the refusal to pay appointed appellate counsel with the pendency of the Towne and Black cases. Why are appointed appellate counsel discouraged from fully developing and arguing Blakely issues independent of those involved in Towne and Black, by being relegated, per the order to "fil[ing] a letter stating with precision the Blakely issues he or she wishes to raise...." ??

The 5th Appellate District's standing order purports to "ensure that the subject issues will be raised and preserved for review in an efficient manner." Efficiency? What would Justice Scalia say to this? To quote from his concurring opinion in Apprendi: The Framers of the Sixth Amendment were not "prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State --- and an increasingly bureaucratic part of it at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free." Apprendi v. New Jersey, 530 U.S. 466, 498 (Scalia, J. concurring).

Somehow, the 5th Appellate District, with its standing order concerning Blakely issues, seems to have failed to appreciate the constitutional underpinnings that animated the author of Blakely to utter the foregoing words.

Hopefully, this order will be reconsidered, and until it is, may it be met with a wave of pro-bono Blakely briefing.

I handle appellate cases in California on both retained and appointed bases. I currently am working on a case in the 5th that involves a Blakely issue. I am going to brief that issue.

Posted by: Victor Haltom | Aug 5, 2004 11:10:30 PM

If the California Supreme Court decides Blakely does not apply to California’s DSL in Towne and Black, perhaps appointed appellate defense attorneys like me might seek federal remedies in the future on Blakely issues rejected by the 5th DCA and California Supreme Court. But if I simply file a letter brief pursuant to standing order 04-01 and the court never asks for briefing, have I exhausted my state remedies for purposes of obtaining federal review? Note how the standing order does not say appointed counsel may not brief Blakely issues, or that the 5th will not address them. It says appointed counsel will not be paid for raising Blakely issues, noting that a failure to file a letter brief will result in waiver.

I’d hate to have to argue in the future to a federal district judge that I was excused from briefing and thereby exhausting a Blakely issue in state court because the 5th DCA said I would not get paid. So now either I have to do further research on the exhaustion issue, how it could apply to this extraordinary standing order and whether and how I should challenge the order itself (for which I doubt I would get compensated), or simply file a brief raising a full-blown Blakely argument on any Blakely issues I’ve spotted (knowing I will not get compensated.)

Fortunately, Jonathan Soglin at FDAP and other project staff and panel attorneys have made available high-quality, thorough sample briefing on many California/Blakely issues, often allowing for confident copy-and-paste briefing on the law. I predict I will fully brief any Blakely issues I encounter in cases before the 5th; if I do, I will be sure to file the letter brief also to ensure the issue is not waived.

Posted by: Rex Williams | Aug 10, 2004 5:59:48 PM

Isn't this order inviting ethical violations, by discouraging vigorous representation of the interests of the clients of the affected appointed counsel?

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:19:00 AM

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