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March 8, 2005
Pondering some post-Shepard questions
I continue to ruminate over the Supreme Court's opaque work in Shepard and its tantalizing hints that the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule may be eliminated in some future case (the Shepard basics are summarized in this post). Here are just a few questions jumping to mind:
1. A number of state supreme courts considering Blakely cases received or asked for supplemental briefs in the wake of Booker. Will there now also be Shepard-focused supplemental briefs? (Consider this comment about the impact of Shepard on New Jersey's Blakely litigation.)
2. Might state and federal prosecutors, fearing the eventual demise of the Almendarez-Torres "prior conviction exception," start regularly including prior conviction facts in at least some indictments? Put another way, might some indictments now get "Shepard-ized"? (True law geeks like me should enjoy that pun.)
3. How long will it take for the Supreme Court to grant cert. (and then decided) what Justice Thomas calls "Almendarez-Torres' continuing viability"? Since Blakely, as I explained here, this issue has been of critical importance, but I now fear we may have to wait another year or longer before we get a resolution.
4. Will Justice Thomas' statement that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided" and his lament that "[i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres" have any traction in lower courts? Might a state Supreme Court consider using state constitutional law to eliminate the exception rather than await the work of a fickle US Supreme Court.
March 8, 2005 at 07:12 AM | Permalink
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» http://www.crimblawg.com/2005/03/thoughts_about_.html from Criminal Appeal
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