State Blakely cases ring in the new year

I joked here that I was waiting to see which court would be the first to issue a noteworthy Blakely ruling in 2005.  Perhaps fittingly, the honor goes to the Washington state courts, which already has two new year Blakely rulings on-line: State v. Fero, 2005 WL 15171 (Wash. App. Div. 2, Jan. 04, 2005) and State v. Cartwright, 2005 WL 12021 (Wash. App. Div. 1, Jan 03, 2005).  And, for those scoring at home, we also have on-line Blakely decisions from California and New Jersey this new year.  See People v. Standifer, 2005 WL 15449 (Cal. App. 2 Dist. Jan. 04, 2005); State v. Vasquez, 2005 N.J. Super. LEXIS 4 (NJ App. Div. Jan. 4, 2005).

The Fero case is the most notable of the bunch because it (1) reverses a sentence based on Blakely, (2) concludes that "the plain line of Apprendi, Neder, and Blakely, [establish that a Blakely violation] is a structural error and harmless error cannot apply," but (3) decides that the trial court may on remand "empanel a jury to consider aggravating factors without violating double jeopardy or the separation of powers."  On the second point, one judge weighs in with a thoughtful "dissent from that portion of the opinion holding that Blakely violations are structural errors requiring automatic reversal."

Significantly, as detailed here, an Illinois appellate court has also concluded that a Blakely error ought now to be viewed as structural error and not allow for harmless error analysis, although that court felt bound to conduct harmless error analysis because of rulings of its state Supreme Court.  It is thus increasingly evident that the nature of Blakely error is another tough doctrinal issue that SCOTUS might need to resolve in the near future.