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November 11, 2004

Blakely delays, deals and dodges

Articles like this one about white supremacist Matt Hale's sentencing being postponed document the ways that Blakely is significantly delaying the administration of justice. But as noteworthy, and perhaps even more consequential, may be the ways in which Blakely is altering the administration of justice.

For example, this article from the Fresno Bee details a Blakely-impacted plea deal in a white-collar fraud case:

In a deal with federal prosecutors, [Fresno developer Nick] Lattanzio [who was facing up to six years in prison based on his conviction] agreed to a two-year sentence and agreed to waive all appeals, either of his conviction or his sentence. With credit for the time he spent in custody before and after his trial, Lattanzio could be out of jail in six months.

U.S. District Judge Oliver W. Wanger, who went along with the sentencing agreement, told Lattanzio on Monday that he got a big break because of the current confusion over federal sentencing procedures. The judge also ordered Lattanzio to pay $1.3million in restitution and placed him on three years of supervised release once he completes his prison term.

Assistant U.S. Attorney Virna L. Santos, who prosecuted the case, said the two-year sentence was much less than Lattanzio would have received, but it was a way to bring the case to closure.

I think it is safe to assume that this case is not exceptional.  I suspect that more than a few defendants — especially those with particularly capable attorneys  — have been able to use the Blakely confusion and uncertainty to cut more favorable plea deals.

And, in addition to the delays and the deals, the dynamics of Blakely dodging should also be noted.  I have seen many appellate cases on-line in which the court closes by saying something to the effect of "since we are remanding for re-sentencing on other grounds, we need not reach the Blakely issue."  And a few defense attorneys have reported to me instances during appellate oral arguments when judges have asked questions to the effect of "Can we avoid the Blakely issue if we rule for the defendant on this other ground?".

Though I suspect it would be very hard to track and quantify all the Blakely delays, deals and dodges, it would be quite interesting to try to systematically assess what might be called the collateral consequences of Blakely on the administration of the criminal justice system.

November 11, 2004 at 11:01 AM | Permalink


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