Fascinating Blakely reports on Enron trial

Earlier this week I asked here for readers to report on any first-hand experiences (good or bad) with juries doing sentencing factfinding.  There are some great insights shared in the comments to that post, and I have also received other direct feedback from judges and lawyers that reinforces my general sense that having juries involved in sentencing factfinding has not proved too cumbersome or problematic.

Additional news and insights on this front come from the on-going trial of a group of Enron defendants in the so-called Nigerian barge case.  (The Houston Chronicle has this impressive site with background on the case and all its reporting.)  Despite the fact that the Fifth Circuit has held that Blakely is inapplicable to the federal guidelines (details here), the government sought, and US District Judge Ewing Werlein has arranged for (over defense objections), jury factfinding on seven aggravating factors about the conspiracy and fraud.

The Houston Chronicle has already run three fascinating articles about this Blakely-inspired sentencing proceeding: Ruse cost Enron investors $43 million - or $120,000; Jurors deliberate unorthodox Enron sentencing; and Jury to continue deliberations on sentences of 3.  All three articles are must-reads for anyone interested in a case-specific perspective on how Blakely could play out "on the ground."

Though I cannot readily summarize all the rich details in these great articles, I must note a few interesting facts: (1) of the five convicted defendants, two waived a jury sentencing trial and apparently agreed to judicial factfinding (though the article does not note what burden of proof will apply); (2) it appears that the sentencing phase took only two days after a seven-week guilt phase; (3) through competing expert witnesses (including Dan Fischel, a University of Chicago law professor who testified for the defense), the dispute over the amount of the loss in the offense is enormous, with the government claiming a loss of $43 million and the defense claiming a loss of no more than $120,000; (4) in addition to loss, the jury is also considering facts relating to role in the offense, abuse of trust, more than minimal planning and related issues; and (5) the attorneys spoke directly and diversely to the jury about their sentencing role:

Tom Hagemann, attorney for [defendant] Bayly, told the jury their decisions could alter "whether Mr. Bayly goes to prison for 15 years or not at all."

But prosecutor John Hemann told jurors that it is the judge, not the jury , that will decide the punishments and they are to consider the facts before them and not be swayed by attempts to garner sympathy.