In praise of Okai and its burden of proof insights

In this post praising some notable recent district court decisions, I spotlighted US v. Okai, 2005 WL 2042301 (D. Neb. Aug. 22, 2005), in which Judge Joseph Bataillon continues the strong work on due process and burdens of proof that he started in US v. Huerta-Rodriguez right after Booker (details here).  I have now had a chance to give Okai a close read, and its many Booker and burden-of-proof insights merit additional attention. 

Everyone working in the federal sentencing trenches should be sure to give Okai (which I now am able to provide for download below) a full read ASAP.  Among the passages that garnered my attention is the following section that suggests that the burden-of-proof aspects of Apprendi and Blakely merit retroactive application:

Although a misallocation of factfinding responsibility (judge versus jury) does not warrant retroactive application, Schriro, 124 S. Ct. at 2523, the same cannot be said for the retroactivity of application of a preponderance of evidence standard as opposed to a reasonable doubt standard.  See Hankerson v. North Carolina, 432 U.S. 233 (1977) (giving retroactive effect to rule requiring proof of all elements of crime beyond a reasonable doubt and voiding presumptions that shift the burden of proof to defendant); Ivan v. City of New York, 407 U.S. 203, 205 (1972) (holding that the purpose of a reasonable doubt standard is "to overcome an aspect of a criminal trial that impairs the truth-finding function, and Winship is thus to be given complete retroactive effect"). Application of a lower standard of proof may be an error that significantly affects factfinding accuracy and undermines society's confidence in the result of the trial. See Schiro, 128 S. Ct. at 2523.

Download bataillon_okai_opinion.pdf