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December 9, 2004

In re state Blakely interpretations

As suggested in this recent post, I have largely given up trying to comprehensively track Blakely decisions coming from lower state courts.  (Actually, as noted here, I gave up tracking the California caselaw weeks ago — there are now nearly 250 California state Blakely rulings on-line!) 

There are just too many opinions from too many states to follow all the Blakely state action: including the Oregon rulings noted here, there have been more than two dozen consequential lower state court Blakely rulings — coming from 10 different states — in the last week alone.  I previously noted here that, as of October 16, a total 239 state Blakely cases were on-line via Westlaw; as of this morning, less than two months later, that total is up to 506.

With the state Blakely caselaw starting to mature, most of the recent state rulings do not break major new ground.  Nevertheless, they provide a rich view of all the different ways the Blakely earthquake is rumbling through the states.  Moreover, even a quick review of some of these decisions spotlights how many Blakely questions — on issues ranging from admissions to retroactivity to the prior conviction exception — are in need of definite answers as soon as possible.

The many intra-state disputes over interpretations of Blakely — see examples in Ohio and California — can and will, of course, first get resolved in state supreme court rulings.  But, I think that, before too long, the US Supreme Court will have to get involved and resolve the (perhaps inevitable) inter-state disputes about key Blakely issues.  These issues will surely be making their way into lower federal courts through federal habeas actions, and their definite resolution as soon as possible will be critical for the efficient administration of justice.

Of late, I have been thinking that the Booker and Fanfan delay could be the result of the Court trying to speak broadly about Blakely's meaning (so as to provide additional guidance on all these issues), but having struggles with the exact language.  But that may be just wishful thinking on my part as I worry about how many years and cases we might need to get all the Blakely kinks worked out.  (After all, we are nearly 40 years since Miranda and 30+ years since Furman and we are still working to figure out these areas of criminal procedure jurisprudence.) 

December 9, 2004 at 10:00 AM | Permalink


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Intrastate disputes are nothing. In Indiana we've got at least one appellate judge who can't agree with himself.

Posted by: Michael Ausbrook | Dec 9, 2004 10:11:47 AM

I will be gratified if the Court tries "to speak broadly about Blakely's meaning," but I wouldn't bank on it. This is a Court that often struggles to find a rationale that will attract five votes in a closely-decided case. This is hard enough, without expanding the scope of of the case beyond what is necessary to decide the fate of these two particular defendants. It would not be in character for this conservative Court to issue a sweeping advisory opinion that anticipates questions it need not answer.

Posted by: Marc Shepherd | Dec 9, 2004 10:27:24 AM

If that is the case (Mac Shepherd's post)than my case may never see sentencing. I was tried and convicted by a jury of a white collar crime before Blakely in 2004. But sentencing has been postponed four times because of Blakely. I know that the Four unpward departures will be thrown out but the AUSA has already made an argument to reconvene the trial jury or convene a new jury.

If the Supremes are not going to make it clear in their Booker/Fanfan rulings then the judge will have a tough time knowing what to do. How can you reconvene a trial jury after a year of being released from jury duty? How can you convene a new jury...it will be like going through a new trial? And what will the rules be for a jury to follow if the judge convenes one? All appealable issues, seems to me.

The AUSA is determined though to have me spend five years in prison on enhancements, not the statutory 0-6 months for the actual crime.

Posted by: Fred | Dec 9, 2004 1:11:33 PM

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