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October 26, 2004

Administering Blakely

I will likely be off-line the rest of Tuesday as I travel to Atlanta to speak about Blakely at the "2004 National Conference for District Court Clerks, District Court Executives, and Chief Deputy Clerks." This should be an interesting event because the clerks do not have a partisan stake in the substance of Blakely and Booker /Fanfan, but they have a direct concern with the administration of federal sentencing.

In a pre-event conference call, I heard that issues of concern for the clerks were (1) whether Blakely et al. would lead to an upsurge in the number of criminal jury trials (and the accompanying administrative challenges and costs of conducting such trials), and (2) whether and how Blakely et al. retroactivity claims would be handled and could be processed. I have a few thoughts on these matters to share, and I am looking forward to hearing the clerks' perspectives on these issues.

I hope to be back on-line by late Tuesday night, but posting may not resume until Wednesday. Of course, I posted a lot of interest before leaving, and I also encourage those needing to feed their Blakely addiction to be sure to review (and send me comments on) my "Conceptualizing Blakely" article available here.

Also, my Blakely Basics page has been updated to include October blog posts of note.

October 26, 2004 at 06:50 AM | Permalink


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Hi Professor Berman - I'm a law clerk for Chief Judge Beckwith here in the Southern District of Ohio.

I'm wondering if you have any off the top of your head thoughts aobut whether, assuming Blakely applies to the Sentencing Guidelines, whether during the sentencing phase of a criminal trial the Federal Rules of Evidence would or should apply. We're in the midst of preparing for a trial in which both the government and the defendant have agreed to bifurcate sentencing issues, such as whether the defendant abused a position of trust and the amount of loss, from the guilt phase, kind of like a death penalty case. Following the guilt phase, these issues will be presented to the jury along with new verdict forms to be proved by the gov't beyond a reasonable doubt.

Traditionally, the Rules of Evidence did not apply at the sentencing hearing. Therefore, the judge could receive hearsay evidence in imposing a sentence. But because Blakely now speaks of sentencing enhancements in terms of the Sixth Amendment, I'm wondering whether this practice would remain constitutional in a Blakely regime. In other words, if seems that if the defendant is entitled to have the enhancements proved by proof beyond a reasonable doubt, then the rest of the constitutional protections, such as the right to confrontation, would could along with it. Alternatively, maybe this is Crawford issue and not a Blakely issue.

Thanks for listening.

Posted by: Pat Smith | Oct 27, 2004 4:00:14 PM

These are, of course, great questions Pat. Especially since I am not an evidence expert, I really do not even want to venture an opinion, although I would suggest separating the questions of whether the FRE are constitutionally required versus whether they are a good idea. I am not sure I have an answer to either question, I see them as distinct.

Good luck and keep me/us posted. Thanks.

Posted by: Doug B. | Oct 27, 2004 7:44:05 PM

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