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August 7, 2004

Get in Line

Post from Ron:
The order entered by the Second Circuit yesterday (noted by Doug here) seeks to freeze in place the many potential Blakely claims that might come from defendants who are now appealing their sentences imposed before the case was decided. In one sense, the order is not big news. It only spells out the implications of the Second Circuit's earlier remarkable decision to "certify" questions to the U.S. Supreme Court (background here). The Court of Appeals asked somebody else to handle this, and in the meantime they put all these questions on hold until the answers arrive.

Still, the order tells an interesting story about how many of these cases are in the system and the fact that so many of them will be making identical claims. It is easy to take special interest in the first case to get to each circuit court, and even more so the first case in which the Supreme Court grants cert. And we certainly should notice the large number of negotiations at the trial court that are affected. But it is easy to forget the large number of people who have already been convicted and sentenced but are waiting in line in the appellate courts, each with a routine case, but each potentially affected by Blakely.

Addition by Doug:
Moreover, though the Second Circuit order seeks to preserve the status quo, the range of (different and conflicting) decisions being made in district courts in the Second Circuit creates a status quo that is not nearly as orderly as the Second Circuit's order might imply.

In the end, though, this order does reinforce the point the Second Circuit made so forcefully when certifying questions to the Supreme Court: lower courts need additional guidance on Blakely ASAP. The Supreme Court should be coming to understand that it is not enough to simply hear Booker and Fanfan right away; the High Court needs to render a decision as soon as possible to keep the federal criminal justice system from grinding to a halt. But, given all the hard questions Blakely now raises (examples here), a fast decision is easier said than done.

August 7, 2004 at 08:31 AM | Permalink


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The Second Circuit has a regularly-scheduled oral argument session this coming Tuesday, it's only session in August. The court's staff has told me that there are numerous Blakely motions, some of which are presumably on the calendar for that day. (I have a few Blakely motions filed but have been told that my cases won't be heard until the September 14th session). Perhaps something in the oral arguments that day will change the current order you've posted. We'll see.

Posted by: Alex E. | Aug 7, 2004 8:37:21 PM

The court's staff has told me that there are numerous Blakely motions, some of which are presumably on the calendar for that day.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 2:13:49 AM

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