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November 16, 2004

Exploring the nature of Blakely error in Illinois

This special thanks to the reader for sending the decision along, available for downloading below is what may be the first major Illinois Blakely decision, People v. Nitz, No. 5-98-0657 (Ill. App. Nov. 10, 2004).  This case has a long, winding procedural history and involves Apprendi as much as Blakely.

The decision gets interesting when the court explains its view that, after Blakely, the denial of Sixth Amendment rights ought now to be viewed as structural error and not allow for harmless error analysis.  The court goes on to explain, however, that it feels it must nevertheless follow extant Supreme Court and Illinois precedent to the contrary:

Although we firmly believe that a majority of the justices on today's United States Supreme Court would never allow the harmless error analysis that we are about to engage in, that majority has remained silent about Neder v. United States, the case upon which People v. Thurow rests. The Illinois Supreme Court has declared that it is bound by the Neder decision in the absence of a United States Supreme Court opinion expressly overruling it.

Given the position taken by our betters, we cannot forego a harmless error analysis. People v. Thurow says what it says, and absent an Illinois Supreme Court holding to the contrary or a United States Supreme Court decision that expressly overturns Neder v. United States, we are bound to follow People v. Thurow.

Download people_v. Nitz.doc

November 16, 2004 at 12:22 AM | Permalink


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