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October 25, 2005

Cert briefing in Recuenco on nature of Blakely error

As first noted in this post, last week the Supreme Court granted cert in Washington v. Recuenco (docket 05-83) in order to explore whether Blakely errors can be subject to harmless-error analysis under Neder v. US, 527 U.S. 1 (1999) (available here) or instead qualify as structural errors under Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here).  As spotlighted in subsequent posts and comments here and here, there are many intriguing aspects of the High Court's decision to take up this issue and to use Recuenco as its vehicle.

To help fill out this story and enhance my own understanding of this fascinating little case, I have obtained copies of the cert briefing in Recuenco.  Three briefs — the state's petition for cert, the defendant's brief in opposition and the state's reply — are available for download below.  I hope to have some more comments about the dynamics and the stakes of Recuenco after I get a chance to review and contemplate these briefs.

Download wa_v_recuenco_cert_petition.pdf

Download wa_v_recuenco_bio.pdf

Download wa_v_recuenco_reply.pdf

October 25, 2005 at 05:31 PM | Permalink


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I had the Eighth Circuit affirm a Booker violation based on harmless error just days before the grant in Recuenco. The case is U.S. v. Red Elk. I am preparing a cert petition right now and would certainly welcome any helpful comments from the blogosphere regarding the issues, the split in authorities, or where this issue is headed. I assume that other petitions raising this issue will be held as they were with Booker and remanded, hopefully, based on a positive decision by SCOTUS.

Posted by: Neil Fulton | Nov 1, 2005 3:58:52 PM

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